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Post Nuptial Agreement... Pls Help!!!

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Lee2519

Guest
My Dad passed away one month ago in Florida. He had his wife sign a post nuptial agreement giving up her right to an outright distribution of his retirement plan (401K). Before she signed, she hired an attorney to review this agreement and to explain the meaning and legal effect of it. The agreement as well as the last will and testament clearly states that she is entitled to 10% of the principal value of the plan per annum. Upon her death, my brother and I are to receive the balance of the plan.

My step-mother has hired an attorney and is now stating the agreement is not valid since my father did not disclose all of his assets in the agreement. Apparently, he didn't disclose a life insurance policy of 100k that my brother and I have inherited. However, he did disclose all other assets including the life insurace policy of 250k in which my step-mother inherited.

Please advise what grounds my brother and I have at securing the 401k and granting my fathers wishes. Both my brother and step-mother are executors of the will.

Since my Dad did not disclose this info does this automatically mean the post nuptial is not valid. Please help!!!!!!
 


ALawyer

Senior Member
Okay let's stop and think this through. They had an agreement. He's dead. She wants more. How do you get more? You try to set it aside.

Setting aside an agreement for fraud is a long established principle of law. And misleading statements can be fraud IN SOME CIRCUMSTANCES. Similarly lack of full disclosure or over-reaching in a pre or post marital agreement can be a basis for setting something in it, or the entire agreement itself, aside. The issue is was there a lack of disclosure, was it truly material, and how do you know she is right and can prove a failure -- perhaps an intentional failure -- to disclose? Eventually this would be decided by a judge or jury. Among the issues that would be influential was the natire and duration of the marriage, the parties' realtive wealth, the terms of the agreement (was she also comfortable, and did she want to protect HER assets for her family if SHE died first), and how overreaching or generous it was or wasn't, and if she made full disclosure.

So YOU NEED A VERY GOOD LAWYER IN THE LOCAL AREA to help you figure this out. If she is successful what would she get? It may not be as much as she is getting now, or it may be a lot more. The beneficiary of the 401(k), and probably the waiver, is goverened by Federal law, but its value may impact her rights under other state laws of intestate succession or election. AND a court may not let her just set that aside and keep the benefit of everything else. For example, if she knew about the $100,000 policy, what more would she have received for her consent, 1/3rd of that -- not the entire $401(k).

Also, if she is to get 10% of the principal in the 401(k) per year, anyway, unless she is in her 80s or in bad health, I'd guess the expected value of that income stream may pretty much equal the whole value. Further, if paid from the 401(k) the proceeds are subject to income tax as she withdraws it. So getting trhe 401(k) may not mean much financially

This cries out for an experienced lawyer. The lawyer may, after considering the law, the facts and the costs, suggest the matter be compromised, with her getting something more, but not nearly everything she wants.
 
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JETX

Senior Member
Due to the variables involved in probate law, and especially with the confusion of this post-nuptial agreement, I STRONGLY suggest you talk with an attorney in your area experienced in probate issues. He/she will be the only person that can review ALL the issues involved (far too many for an online forum) and give you the best advice.
 
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Lee2519

Guest
Thank you both for your responses. Let me follow up with some additional pertinent information.

The marriage between my father and step-mother was 18 years. Both my deceased father and step-mother are 60 years of age. My step-mother is well off. She has a house that is worth 300k, received a life ins policy worth 250k and within the past year inherited 300k from her family. On the other hand both my brother and I are in our 30's and living within our means. I am a single mother raising an 8 yr old son. I was very close to my father in which he helped me financially through out his life. My father realized after several yrs of marriage what kind of woman he was married to (greedy, she was with him just for the money) but didn't want to give up half of his estate through divorce. He tried to protect us in the post nuptial in case his wife died, at least his children not hers would receive the balance of the 401k.

******One more thing, my step-mother never waived her right to the 401k on the beneficiary list, it states her name as the beneficiary. Therefore, what takes precedence the post nuptial agreement/last will testament that was created after the beneficiary provision or the beneficiary provision.

Thank you all for taking a moment of your time to help.
 

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