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Beneficary Provision vs. Post Nuptial Agrmt

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Lee2519

Guest
Following is a shortened version of the situation. (For further details please read the thread entitled Post Nuptial Agreement... Pls help!!! For the lawyer who responded in the previous thread I have answered your questions in the other thread.

Estate in Florida


My father was married 18 years to his second wife. Four years ago after realizing his wife was greedy and not faithful he had her sign a post nuptial agreement giving up her right to an outright distribution of his 401k (qualified retirement plan). In this agreement as well as the last will and testament, it states, she is entitled to 10% of the principal value per annum. Upon her death, the remaining balance, if any, will be distributed to my brother and myself.


Okay here are the problems:

The wicked step-mother has hired an atty and is claiming my father did not disclose all of his assets in the post nuptial. My father included a life insurace policy of 250k that she is to inherit, however, did not disclose a 100k life ins policy that my brother and I are to inherit I looked up the Fl Statue that governs The waiver of spousal rights that is mentioned in the post nuptial and it states EACH SPOUSE SHALL MAKE A FAIR DICLOSURE TO THE OTHER OF THAT SPOUSE'S ESTATE.....

Therefore, what constitutes a fair disclosure? All other assets were listed but the life ins policy.

The other problem is that my father filled out the beneficiary provision on his 401k many years ago and named my step-mother as the beneficary not the trust. The post nuptial agreement and Will was created after the beneficiary provision.
Which takes precedence??

Its obvious we will be going to court over this matter. Do I hire a probate atty or a litigation atty. I need someone who can play hard ball to finally put this greedy wicked step-mother in her place. Does anyon know of a experienced atty in Broward Cty or Palm Beach Cty. (Boca Raton)

Thank you in advance for your response.
 


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advisor10

Guest
SEPT. 1, 2001

DEAR LEE2519:

You were very smart to use the power of the Internet (the freeadvice.com message board) to get opinions about your situation!

The greed of this stepmother is unbelievable--she is already so well off and the fact that she would try to begrudge his own blood relatives from receiving what is rightfully theirs is horrible! I think I have good news for you, though--in my opinion, she is going to LOSE BIG TIME and I think her lawsuit against you will be dismissed immediately without even going to trial, because she does not have sufficient grounds.

It is common knowledge (most probate attorneys should be aware of it anyway) that LIFE INSURANCE PROCEEDS ARE NOT CONSIDERED A PART OF A DECEDENT'S ESTATE AND DO NOT HAVE TO BE REPORTED AS A PROBATE ASSET. The life insurance monies go directly to the named beneficiaries (your father had a right to name anyone he wanted to receive this money). Even if this stepmother had known about the $100,000 policy, there is no way she would have ever been able to benefit from it and consequently there was no reason for her to be informed about it, since it would not affect her one way or the other. Your father certainly has the right to protect his blood relatives and to provide for them.

The beneficiary designation on the 401K takes precedence over the will. Looks like she will only be able to get the 10% of the principal value, with the rest payable to you and your brother, exactly according to your father's instructions.

I'm not exactly sure of the exact definition of fair disclosure and I'll be sending you a separate e-mail message to suggest the name of an attorney in Boca Raton. You may want to get the opinion of 3 different attorneys before deciding on one (have you looked in the local yellow pages or called the local bar association for a referral?). There is also a website called www.legalmatch.com where you could post your situation confidentially, and any Boca Raton attorneys who are interested in it can contact you directly.

In my opinion, I think the post nuptial is strong enough to stand up as being valid and the disclosure will not be a valid issue.

Good luck to you when you declare victory after putting this stepmother in her place and she is revealed to the world for the disreputable person she is!

SINCERELY,

[email protected]
 

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