The premarital agreements if properly executed and carefully crafted and detailed, can essentially override the statutorily granted inheritance rights by the State. A significant and an advantageous legal strategy rarely used.
Generally, a surviving spouse is entitled to what the spouse’s will or last testament directs and provides. However, under the DC Statute, the surviving spouse may elect to forego the will and select Statutory rights. That is, the surviving spouse may elect to renunciate the will by specifically stating and filing with probate that:
- I surviving spouse or surviving domestic partner of late of, deceased, renounce and quit all claim to any devise or bequest made to me by the last will of my spouse or domestic partner exhibited and proved according to law; and I elect to take in lieu thereof my legal share of the real and personal estate of my deceased spouse or deceased domestic partner.
Moreover, if there is no will, devise, or bequest then the surviving spouse would be entitled to her/his legal share, that is:
- Where a decedent has not made a devise or bequest to the spouse or domestic partner, or nothing passes by a purported devise or bequest, the surviving spouse or surviving domestic partner is entitled to his legal share of the real and personal estate of the deceased spouse or deceased domestic partner without filing a written renunciation.
The legal share in the District is defined as:
- The legal share of a surviving spouse or surviving domestic partner is defined as such share or interest in the real or personal property of the deceased spouse or deceased domestic partner as he would have taken if the deceased spouse or deceased domestic partner had died intestate, not to exceed one-half of the net estate bequeathed and devised by the will.
In short, and to simplify – the surviving spouse is entitled to at least half of the estate of the spouse unless she or he determines to elect the written will if that is in fact a larger sum than the 50% of the estate.
Significantly, a valid prenuptial agreement can change the entire legal dynamics as the same Statutory section carves an exception for those valid legal documents, specifically:
- A valid antenuptial or postnuptial agreement entered into by the spouses or domestic partners determines the rights of the surviving spouse or the surviving domestic partner in the real and personal estate of the deceased spouse or deceased domestic partner and the administration thereof, but a spouse or domestic partner may accept the benefits of a devise or bequest made to him by the deceased spouse or deceased domestic partner.
In another word, the prenuptial agreement can require waiver of the statutory inheritance rights, and that would be both enforceable in contract and by the carved exception in the Statutory language.
Prenuptial agreements should not preempt the need for estate planning but should work in concert and in tandem with estate planning together drafting consistent language and conveying the same intent.