Divorce Agreement vs. Will

[sep2897]

What is the name of your state? NORTH CAROLINA

My father recently died. Nearly 30 years ago, my parents divorced (a bloodbath) when my sister & I were small children.

The divorce agreement with my mother, his first wife, clearly states that 1/2 of my father's estate is to go to my sister & I. It also designated a specific life insurance policy to my sister & I. He was well aware of the provisions, as my mother fought very hard for them, & was very vocal about saying he planned to ignore it.

He went on to marry 2 more times. His 2nd wife died & they had no children (she had 2 outside the marriage). His 3rd wife & he were married at the time of his death & they have no children together (she has 3 outside the marriage).

In his will:
--my sister & his 3rd wife are dual executors of the will.
--he specified the following: the life insurance policy was willed to my sister & I, as the divorce agreement specified. A 26 acre parcel of land went to us both, which was unexpected. There was a life insurance policy for his 3rd wife. There were no other specifications except that --the remainder of his estate, in it's entireity, was willed to his 3rd/current wife.

It's only been a few days, so the estate is only in the preliminary stages & we have no idea what it's value will be.

My question is this:

Will the 30 yr old divorce agreement, designating 1/2 his estate to my sister & I, hold up legally, & take precedence over, his will written in 2001?

Everything above took place within the state of North Carolina.

thank you

 

[BelizeBreeze]

While I want to say yes, there's no way anyone call give you a definate answer.

The estate needs an attorney. Like yesterday.

What I can tell you is that the property settlement in the divorce is a legally binding contract between your father, your mother and the court. It cannot be usurped by will .

In other words, property disposed of by divorce, whether physically or on paper, can't then be given away.

BUT PLEASE, have the estate hire an attorney to review the entire situation.

 

[seniorjudge]

While I want to say yes, there's no way anyone call give you a definate answer.

The estate needs an attorney. Like yesterday.

What I can tell you is that the property settlement in the divorce is a legally binding contract between your father, your mother and the court. It cannot be usurped by will .

In other words, property disposed of by divorce, whether physically or on paper, can't then be given away.

BUT PLEASE, have the estate hire an attorney to review the entire situation.

The court may indeed look on the judgment in the lawsuit as a "contract" to dispose of pa's stuff.

So, I most assuredly agree with BB: Get thee to a lawyer IMMEDIATELY.

 

[nextwife]

The ADDITIONAL life policy, to his wife, is NOT "part of the estate". LIfe insurance passes to the beneficiary OUTSIDE the estate. So, likely, his naming his wife in a policy beyond the one covered in the decree is NOT contrary to it. Also, joint tenant property passes outside the estate to the surviving joint owner.

There may also still be medical expenses for the estate to pay off

You need to know what the estate consists of, so you know what the 1/2 of the estate would even end up to be. If the land you and sis WERE willed has value, it could be worth well more than whatever the half of his estate that is subject to probate may be. You may be getting worked up over very little. Much of what is in the household could very well have been brought into the marriage or bought by the third wife and NOT be part of HIS estate. CErtanly, if there is an estate worth fighting for, it makes sense to get an attorney.

But if, for example, dad and his third wife were living in a house she already owned and furnished BEFORE marriage (as is the case in my marraige), his car is old - or leased, she owned her own car, he had little remaining in savings or retirement, there honestly may not be much of an estate to fight for. Three time divorced men who have been paying CS to multiple kids are NOT able to save much, and often have already passed half or more of their assets to ex's when they divorced them.

 

[Dandy Don]

For your sake, I hope he paid all the premiums on the life insurance policy that he designated for you and your sister, since if he quit paying them and let them lapse, then you may not have much of anything since the insurance company under those conditions would not have to pay out. Do you even know the name of the insurance company, do you have the policy number and have you even checked on the status of the policy to find out how to file your claim?

DANDY DON IN OKLAHOMA ([email protected])

 

[sep2897]

Nc

Okay--
First, thank you for your responses. They are much appreciated. Keep'em coming if you see anything that might not make this a solid case for me.

Second, it's been months now since my original post. As you can imagine, this has been most unpleasant & I have mostly avoided the entire mess, except when absolutely necessary. I apologize for "checking out" for so long.

Third, posting here was a way to initially dip in my toes & see if finding an attorney would be a proper route to go. I didn't want to go thru it, or put the 3rd wife who's done nothing to me thru it, if it was unnecessary. Thanks to your responses, we retained legal council. Unfortunately, it's all still in litigation--seems endless. Just batting interogatories, etc back & forth, no trial or settlements have happened yet. But, I cannot see how further comments/help could possibly hurt in this situation (can never be overprepared is my motto), so I welcome any that any of you have.

I am being reassured by council, as the months roll by & the $$$, that this is as sure as it gets, but I cannot help but be nervous. So, if there are any reasons this may not be fruitful, I certainly don't want to persue it--not only for myself but for ALL the parties involved. And certainly don't want to throw it all away to the lawyers, if it's not going to happen. So--if you know of any reasons that it's not a solid slam dunk--let me know.

To respond to some of the posts....

nextwife--
--turned out the 2nd insurance policy, I stated was going to the wife, actually wasn't hers, it was sis & I's. The 3rd wife had falsely told the funeral director to apply for it, with her as the beneficiary & at the time of this post, I was none the wiser thinking there was only 1 policy. The insurance co. promptly nipped that in the bud! Insurance money for both policies has long been distributed now properly, so it's a non issue.

med expenses are now satisfied & although the estate should be closed to probate--another glitch...3rd wife & sis cdidn't complete the proper paperwork for it to close in the time frame allowed (translation, 3rd wife didn't want to submit the paperwork, because then we'd know the worth of the estate). A local non-involved atty was appointed to do their job--he still hasn't finished--waiting on one more appraisal.

you're precisely right--need to know the total estate value to determine if we've already received 1/2, but as it looks now-- the property we were willed directly was worth about 30,000 & the remaining estate is well over 1/4 million, approaching 1/2--all based on the initial interogatories the 3rd wife has supplied when forced by our council. As I said before, probate is still in the air.

His house, it's contents & all other holdings, were all his coming into the 3rd marraige & afterwards (she never worked, he was retired & she literally came with the clothes on her back--not even a car--the woman was 30+ years his junior & a migrant worker).

my sis & I are his only children. As you've gathered, he was not stretched financially. He didn't have to give a undue amount to mom in the first divorce either...My mother fought for this "1/2 estate" clause to her kids in the divorce, in lieu of any alimony at all. He paid the usual child support to age 18 & health insur to age 24 (since we attended college, my mother paid for) but really nothing else but music lessons. She didn't clean his clock--the assets were actually tipped moreso in his favor--but, she did put this clause in, for her children, upon his death, expressedly in exchange for asking for no alimony for herself. Since I've posted originally, I've read the actual divorce agreement---it goes on for a full page + specifically about us receiving 1/2 his estate.

But, you are clearly right on all points--those are all super points & if this situation were as you thought it might be, this wouldn't be something to pursue & could have saved me a lot of grief--thank you & I welcome any further comments.

DandyDon--
The divorce settlement specified that if he didn't keep up the insurance, that he would then have to pay alimony. He complained loudly about it, but thank goodness mom/her lawyers put that in, because he would have definately defaulted. Since so much time has passed ,& I'm sure you've now read, the insurance is settled. Thank you for your valuable input.

My warm thanks again!

 

[Dandy Don]

Does the divorce agreement specify the individual values for his estate assets at the time the agreement was written up?

Is there a penalty in the agreement in the event that the will does not specify that you all get half from the will?

DANDY DON IN OKLAHOMA ([email protected])

 

[sep2897]

North Carolina

Dandy Don-

You asked...Does the divorce agreement specify the individual values for his estate assets at the time the agreement was written up?

I'll write out how the particular article reads--let me know if this answers your question or not...

"Husband and Wife shall each devise and/or bequeath to the children born of their marriage a minimum of one-half (1/2) of their respective total adjusted gross estate as determined for federal estate tax purposes, including, but not limited to, all trust assets created on or after the date of separation referenced herein. Provided, in the event the benefits of xxx Insurance Company policy (policy number xxx) in the amount of xxx for any reason be included in the calculation of the adjusted gross estate of Husband, then Husband shall devise and/or bequeath to the children of the marriage a minimum of the sum of one-half (1/2) of his adjusted gross estate as calculated without the inclusion of said policy benefits plus the benefits of the insurance policy. Said obligations shall be binding upon Husband's and Wife's respective heirs, successors, assigns, trust beneficiaries, executors, trustees, administrators and all personal representatives. The children of the marriage named hereinabove shall be third party beneficiaries of this Agreement."



You asked..."Is there a penalty in the agreement in the event that the will does not specify that you all get half from the will?"

Other than the article that follows the above article, I don't believe so...Here it is:

"It is mutually understood and agreed that either party hereto shall have the right to compel the performance of this Agreement, or to sue for the breach thereof in any Court where the jurisdiction of the parties herto may be obtained. Either party may compel the performance for themselves or in a representative capacity for the named third party beneficiaries...."


FYI: These articles are from the last of three Separation Agreements. This final Separation Agreement was incorporated by reference into the absolute divorce.

What do you think?

 

[sep2897]

I was rereading the posts & nextwife said this...."Also, joint tenant property passes outside the estate to the surviving joint owner."

He changed over the bulk of everything to joint with his 3rd wife, about 5 years ago, when he had his will drafted. The divorce agreement with my mother is decades old.

When our complaint was filed, our lawyers are alleging claims for...
1. "breach of contract",
2. ask for "specific performance" of the settlement conveying 1/2,
3. "constructive fraud" saying he engaged in "self-dealing" or otherwise structuring the ownership of his property to avoid his obligations under the agreement,
4. are asking for a "constructive trust" to be imposed on all property and assets at the time of death by the entirety or in which the 3rd wife had rights of survivorship.

Just thought I'd throw that info in, to aid you in mulling this over. Do you think this case will hold up?



Just a side note...
I know it wouldn't mean a thing in court, since it's just heresay from me, but just to give you the background & believe me, the TIP of the iceberg...

He publically proported & he told me twice, to my own face, many years ago, that he would never leave a dime to his children, because he hated my mother so much it would be just like giving it to her directly. After the divorce, they were head to head business competitors, both owning several companies directly competing--the bitterness not only didn't fade, it actually increased over the years. He told me his plan was to sell all his businesses (he did), retire (he did) & spend all the proceeds up so there would be nothing left to leave in his estate (he spent a lot, but a large amount remains). He was in his 2nd marraige, when he told me this & additionally said he was going to give one of the businesses to one of her children (he didn't & 2nd wife later died--he sold it later) to avoid it being in his estate.

So, my point is...it was no surprise he tried to move it all to joint to avoid leaving it to us--totally 100% expected. In her interrogatories, 3rd wife admitted that his attorney who drafted the will, had the divorce agreement in hand while completing it. She denies knowing about it until his death. Whether she did or not, is anyone's guess--she either knew & stood to gain a lot, or didn't & got conned by him too when he made the will telling her she'd get it all. He publically proported they married as an arrangement....he 70, wealthy & dying, she 30 something, a migrant with no citizenship...he got sexual favors, meals & a clean house (from his mouth), and a way to avoid leaving this estate to his children, and in his eyes to my mother (never mind I'm a housewife in my late 30's, & so is my sister, having no part of her businesses ever & we were tiny kids during the divorce), and she got promised wealth & citizenship. Birds of a feather....regardless, my bone is not with her, it's with him to fulfill a contract he intended not to. My point here is, he had the integrity of a slug & would've done anything to avoid his obligations in the settlement out of spite. He went to his grave full of bitterness & quite smug.

Will he succeed--did his lawyer see some loophole we aren't?

 

[Ohiogal]

I was rereading the posts & nextwife said this...."Also, joint tenant property passes outside the estate to the surviving joint owner."

He changed over the bulk of everything to joint with his 3rd wife, about 5 years ago, when he had his will drafted. The divorce agreement with my mother is decades old.

When our complaint was filed, our lawyers are alleging claims for...
1. "breach of contract",
2. ask for "specific performance" of the settlement conveying 1/2,
3. "constructive fraud" saying he engaged in "self-dealing" or otherwise structuring the ownership of his property to avoid his obligations under the agreement,
4. are asking for a "constructive trust" to be imposed on all property and assets at the time of death by the entirety or in which the 3rd wife had rights of survivorship.

Just thought I'd throw that info in, to aid you in mulling this over. Do you think this case will hold up?



Just a side note...
I know it wouldn't mean a thing in court, since it's just heresay from me, but just to give you the background & believe me, the TIP of the iceberg...

He publically proported & he told me twice, to my own face, many years ago, that he would never leave a dime to his children, because he hated my mother so much it would be just like giving it to her directly. After the divorce, they were head to head business competitors, both owning several companies directly competing--the bitterness not only didn't fade, it actually increased over the years. He told me his plan was to sell all his businesses (he did), retire (he did) & spend all the proceeds up so there would be nothing left to leave in his estate (he spent a lot, but a large amount remains). He was in his 2nd marraige, when he told me this & additionally said he was going to give one of the businesses to one of her children (he didn't & 2nd wife later died--he sold it later) to avoid it being in his estate.

So, my point is...it was no surprise he tried to move it all to joint to avoid leaving it to us--totally 100% expected. In her interrogatories, 3rd wife admitted that his attorney who drafted the will, had the divorce agreement in hand while completing it. She denies knowing about it until his death. Whether she did or not, is anyone's guess--she either knew & stood to gain a lot, or didn't & got conned by him too when he made the will telling her she'd get it all. He publically proported they married as an arrangement....he 70, wealthy & dying, she 30 something, a migrant with no citizenship...he got sexual favors, meals & a clean house (from his mouth), and a way to avoid leaving this estate to his children, and in his eyes to my mother (never mind I'm a housewife in my late 30's, & so is my sister, having no part of her businesses ever & we were tiny kids during the divorce), and she got promised wealth & citizenship. Birds of a feather....regardless, my bone is not with her, it's with him to fulfill a contract he intended not to. My point here is, he had the integrity of a slug & would've done anything to avoid his obligations in the settlement out of spite. He went to his grave full of bitterness & quite smug.

Will he succeed--did his lawyer see some loophole we aren't?

Here is the problem I see:
1) you are entitled to half his estate -- well you and your sister. There was no specification of what had to be in that estate. No restriction of him selling or disposing BEFORE his death of HIS belongings. So I do not believe you can force the house or anything in joint tenancy to be considered in his estate. He had it in joint tenancy wros with his spouse -- something that is common with married people -- and therefore it is in not in his estate.

You get the life insurance policies. He kept that bargain due to the penalty you say is in the divorce agreement.
Its a shame that your father was such a bitter man. Don't let his bitterness destroy you. Take what you were left and leave the rest. Don't let his hatred and anger consume you. Truthfully just feel pity for your father for not recognizing you and your sister as the joys you could have been to him if he allowed it.

 

[Dandy Don]

Is there a trust containing some assetsnot covered by the will or is there no trust at all?

 

[sep2897]

no trust at all. bulk of estate worth is tied into stocks.