Please enlighten me on this wills question:
- [+] Spoiler
- Question ID: 2840
Twenty years ago, John and Mary were married. One month before their wedding, John and Mary signed a valid prenuptial agreement in which each of them waived “any property rights in the estate or property of the other to which he or she might otherwise be legally entitled upon the termination of their marriage by death or divorce.”
Seventeen years ago, John executed a valid will, which provided as follows:
I, John, leave my entire estate to my wife, Mary. However, if I should hereafter have children, then I leave three-fourths of my estate to my wife, Mary, and one-fourth of my estate to my children who survive me, in equal shares.
Fifteen years ago, John had an extramarital affair with Beth, who gave birth to their child, Son. Both Beth and John consented to Son’s adoption by Aunt. At the time of the adoption, Beth, John, and Aunt agreed that Son would not be told that he was the biological child of Beth and John.
Three years ago, Aunt died, and Son moved into John and Mary’s home. At that time, John admitted to Mary that he had had an extramarital affair with Beth which had resulted in Son’s birth.
Three months ago, Mary filed for divorce. Nonetheless, she and John continued to live together.
One month ago, before John and Mary’s divorce decree was entered, John was killed in a car accident. John’s will, executed 17 years ago, has been offered for probate. John’s will did not designate anyone to act as the personal representative of his estate.
John was survived by Mary, Son, and John’s mother.
1. To whom should John’s estate be distributed? Explain.
2. Who should be appointed as the personal representative of John’s estate? Explain.
On the part in bold above in spoilers, model answer had this to say:
- [+] Spoiler
- b. Prenuptial agreement (25%)
The prenuptial agreement signed by Mary acted as a waiver of all rights to John’s estate upon the termination of their marriage by divorce or death. The facts indicate that the prenuptial agreement was valid, and therefore Mary would be precluded from any share of John’s estate. However, the waiver in the prenuptial agreement does not apply to subsequent gifts or bequests made voluntarily by John. Therefore, Mary is entitled to take the share of John’s estate delineated in the will as the will was voluntarily executed after they entered into the prenuptial agreement.
What rule is this? I cannot locate this in the outlines...
Everything you need is in the prenup and the will. I don't think there's anything here for an outline to cover. The prenup might be relevant if he had died intestate or if he'd given her less than than the spouse's elective share and she'd tried to assert her rights.
She's waiving her claim to his property- he still has the option to give it to her if he wants. And because the will is the last statement of what he wants, it controls regardless of the language of the prenup.
Like say we make an agreement not to sue each other. Later, I give you twenty dollars. The agreement not to sue each other won't preclude me from giving that gift.
e. now as for the second part of that question.... I have no idea how you'd figure that out.