Texas does not recognize a pretermitted (forgotten) spouse so this article has no application to Texas. Some states do recognize a pretermitted spouse and I have written about those states here. Basically, a pretermitted spouse is someone who marries a person after that person has made a will. If the will is not revised and the parties are still married on the death of the one who made the will, the surviving or pretermitted spouse will take a portion of the estate even though they are not mentioned in the will.
Pretermitted Spouse and Premarital Agreement
In a 2014 case from California, which does recognize a pretermitted spouse, the court was asked to determine if a premarital agreement would override the pretermitted spouse’s rights to the estate. The husband and wife entered into a premarital agreement before they were married that contained a mutual waiver of all rights in the other’s estate by reason of the proposed marriage. Both husband and wife were fairly well to do business people. During the marriage, the wife ran into hard financial times and filed bankruptcy. After the husband died, the wife asked the court to give her a portion of the husband’s estate based on California’s pretermitted statue since the husband did not include her in his will. The court upheld the premarital agreement. The court found that the wife was “financially comfortable” when the parties executed the waiver in 2001. She had a successful real estate business and an income of approximately $10,000 per month, while husband’s tax returns showed an annual income of only $25,191 in 2000 and $25,905 in 2001. The parties’ mutual waiver of all rights and interests in the other’s estate did not result in husband retaining all the couples’ combined wealth on his side of the transaction. On the contrary, the evidence suggests wife potentially had more to protect when the waiver was signed. Since this was a mutual agreement without coercion, the wife is bound by it.
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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.