Widow Receives Partial Elective Share Despite Prenuptial Agreement
I am surprised by the number of cases involving prenuptial agreements that fail to accomplish the intended purpose. When the agreements do not work, it is generally because the parties fail to follow the proper procedures. The parties should be represented by separate counsel and must make a full disclosure of their assets to each other. Further, the agreement should be signed prior to the eve of the wedding.
In the Estate of Joseph Brightman Cooper, the proper procedures were not followed. First, there was no listing of the assets of each party. Apparently, Mr. Cooper told his bride that he owned a house with 18 to 20 acres. Mrs. Cooper testified that Mr. Cooper neglected to tell her about the cattle and farm equipment that were located on the farm. Mr. Cooper may have assumed that she knew about the cattle and equipment since she had lived in the same community, had visited his home on several occasions, and had known him for 20 years prior to the marriage. It also appears that Mrs. Cooper was not represented by an attorney.
After Mr. Cooper died, Mrs. Cooper did not like the provisions made for her in Mr. Cooper’s Will and asked the Court to award her 40% of the estate. The Court ruled that she could not receive part of the house and farm because she had known about this property when she signed the prenuptial agreement. However, since Mr. Cooper had failed to tell her about the cows and equipment located on the farm, she could receive 40% of the value of these assets as well as 40% of all other assets owned by the estate.
The Coopers’ prenuptial agreement only covered property owned by the spouses at the time of the marriage. This is very unusual. Most prenuptial agreements eliminate elective share rights with respect to all property belonging to the estate of the first spouse to die.
Mrs. Cooper received approximately $185,000 from Mr. Cooper’s estate. In addition to paying $185,000 to Mrs. Cooper, the estate paid significant legal fees. The prenuptial agreement was partially successful because it prevented Mrs. Cooper from receiving any portion of the house and 18 acres. I did not know Mr. Cooper, but presume that his intent in signing the prenuptial agreement was to prevent his wife from claiming an elective share of his estate. His intent was thwarted due to his failure to follow proper procedures.
There are three lessons to be learned from this case. First, if you want to make sure that your children receive what you want from your estate, make sure the prenuptial agreement is properly drafted and follows the proper procedures. Second, if you want to be able to receive a share of your spouse’s estate upon his or her death, do not sign a prenuptial agreement, or, alternatively, negotiate for the amount that you want to receive in the event of death and include this in the prenuptial agreement. Third, if you are a surviving spouse and signed a prenuptial agreement, all may not be lost. The Cooper case is one of several Tennessee cases that have allowed a surviving spouse to claim an elective share of the decedent’s estate despite having signed a prenuptial agreement.
