divorce-jpgOriginally posted on BryanCaveFiduciaryLitigation.com.

Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

The husband filed for divorce and died hours later.  The wife filed a petition for year’s support in the probate court.  Recall that “year’s support” is the unique and often confusing part of Georgia law that entitles a surviving spouse to support and maintenance for 12 months following the other spouse’s death.  Because a contractual agreement to waive the right to claim a year’s support can be valid in Georgia, the husband’s son by another marriage filed a caveat to the wife’s year’s support petition claiming that she had waived the right under the post-nuptial agreement.

The Georgia trial court found that the wife was precluded from pursuing her petition for year’s support, but the Georgia Court of Appeals sent the case back for further consideration. The issue was the emphasized language in the post-nuptial agreement:

In the event that either Wife or Husband moves from the residence and resides separately from the other or in the event that either of them files a divorce action against the other, then they each agree that they will receive as full, final and complete settlement of any claims for alimony, support, or division of property from the other one-half of all items remaining on Exhibit “D” as they may change from time to time with sales and/or purchases and each party shall release the other from any further claims that each of them may have against the other.

Because the divorce action abated with the husband’s death, the question was whether the general release included a release of a claim for year’s support.  In order to waive a claim for year’s support it must be made with knowledge of the surviving spouse’s rights and with knowledge of the condition of the estate.  While there was evidence that the wife was represented by counsel at the time of the agreement and knew the condition of the estate, there was not any evidence presented on whether the wife was aware of her right to a year’s support.  Thus, the appellate court sent the matter back to the trial court for further proceedings.

Seems like the lesson here is that if you want a spouse to waive the right to a year’s support in a post-nuptial agreement, it should explicitly state so in the agreement to avoid having to present evidence of such knowledge later.