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Archive for Sunday, September 16, 2001

Some prenuptual agreements cover wrongful-death lawsuits

September 16, 2001

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Q: Not three days after my second husband died in an automobile accident, his children hired a lawyer to bring a wrongful-death lawsuit. When I asked why I was not consulted, they told me that since we had signed a premarital agreement, I waived my rights to this claim. We had been married for 15 year and lived in my home. All he had was a monthly retired military pension, a small bank account, and an old car which means I will receive next to nothing. I am 67 years of age, and he had not seen his children for five years. It's not that I am a money-grubber, but this does not seem fair.

A: Husbands and wives often sign prenuptial agreements to protect their children by prior marriages against various estate claims, including the statutory elective share. Whether a claim for wrongful death a monetary recovery for a relative's death is included in the waiver depends on the wording of your agreement and the law of the state where you live.

Because comparatively few lawyers anticipate that this type of situation may arise, this contingency is not specifically addressed in the premarital agreement. And if not specifically dealt with by a clause in the agreement, the question may have to be resolved by the courts. Some courts have ruled that a premarital agreement has no effect on a spouse sharing in a wrongful death settlement unless the agreement specifically waives that right.

In some states, the administrator of the estate brings the action while, in others, a beneficiary may sue. There may also be a claim for conscious pain and suffering. These are the reasons the wording of such clauses should be based upon the wording of the wrongful death law in a couple's state of residence. The litigation you will probably face could have been avoided by the addition of a few words of clarification to your agreement that showed your intent. We suggest you contact a lawyer in your state to find out where you stand.

Q: My husband left me nearly six months ago. Even though he is not paying enough support, I have not sought legal help in hopes that he will come back. My friends and family tell me that I should protect myself. I am confused, afraid that if I make him mad, he will not provide anything for me.

A: Faced with tough decisions, some tend to procrastinate and avoid facing the hard questions. Others make decisions while they are uninformed, unprepared and angry. Because divorce is the beginning of whole new assortment of difficulties no one ever anticipated, neither of these tactics will work. Face it: Your husband has been gone for six months. Although you are hoping that things will get better, you are allowing your husband to set a precedent that is, by paying you an amount of money that is insufficient to provide for your needs, he will later argue to the court that the amount is sufficient because you got by on it for six months or a year.

People who understand the rules of the game generally come out better than those who sit back and hope for the best. You must seek the assistance of a qualified matrimonial lawyer in your area to advise you.

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