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If a premarital agreement is signed after the marriage is it legal? Trust was signed after our marriage but lists diff date.

Temecula, CA |

My husband and I were secretly married in 2011. Afterwards, we planned a wedding for the family's sake. The premarital agreement was signed after our 1st wedding but before the 2nd. It stipulates what I will receive in event of his death. A few months later his revocable trust was amended. It states I receive the same as is in premarital agreement. But the marriage date listed is that of the 2nd marriage. He died the next month. Are these documents valid in the state of California?

Trustees are claiming premarital agreement is null and void since it was signed after the Dec 2011 marriage. Still, the trust is in place. But the date on the trust is that of the 2nd marriage. Will it stand up in court? I only want what my husband intended for me. Trustee is saying I deserve nothing.

Attorney Answers 4

Posted

It is difficult to respond without reviewing the trust. If the "premarital" agreement recites (as they usually do) that the consideration is the ensuing marriage it may be that the premarital is no good; but, if the trust incorporates the premarital by reference the trust may prevail. You must consult a competent probate attorney to determine your rights.

DISCLAIMER: The response herein is not legal advice and does not create an attorney/client relationship or any right of confidentiality between you and the responding attorney. These responses are intended only to provide general information about perceived legal issues within the question. Each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer is not a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.

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Hillary Johns

Hillary Johns

Posted

I'm so sorry about your husband.

Posted

My advise to you, if it makes a difference in the amounts you will received because of your husband's death, is to seek out the immediate advice from a probate lawyer in your area. Only an attorney who has reviewed the agreement and declaration of trust can advise you.

If each agreement was executed with the required formalities each agreement will be “valid.” However, the devil is always in the details. The ambiguity you mention, or others, could result in a distribution under the trust different from what you believe was intended. So, it’s important you have a probate attorney review the documents and advise you. Good luck.

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Michael Raymond Daymude

Michael Raymond Daymude

Posted

The additional information you have provided does not change my earlier advice. You need to retain and attorney to establish your rights under the trust. You understand the problem. It can only be resolved with an attorney's help.

Posted

If it is signed after marriage it is not a pre marital agreement.

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Hillary Johns

Hillary Johns

Posted

Right. It's a post nuptial agreement and yes they are legal and enforceable provided that the agreement was prepared correctly. Have you considered having a family law attorney and trust attorney review it who understands tax issues review it? If there's a mistake it's not too late to correct it.

Posted

The "premarital" agreement wasn't really a premarital agreement, it was a POST-marital agreement, and the rules for enforcement are different. You need to speak to an EXPERIENCED EXPERT trusts/estates attorney to straighten this out.

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