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  1. #1
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    Sep 2016
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    Default Does a Marital Separation Agreement Affect Distribution of an Estate

    A couple was in the process of getting a divorce when the wife passed away. She and her husband had negotiated a separation agreement that included property settlement provisions. However, she had not yet signed that agreement when she passed away.

    Will the terms of the marital separation agreement affect the husband's rights to claim that certain assets should go to him by virtue of marriage, as opposed to being distributed to the heirs under the terms of the wife's will?

  2. #2
    Join Date
    Sep 2005
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    Default Re: Does a Marital Separation Agreement Affect Distribution of an Estate

    A formal agreement for division of property is enforceable as a matter of contract. The fact that it is not yet signed does not automatically mean that it is not enforceable, although there may be statute of frauds issues to the extent that the agreement encompasses real estate.

    The administrator of the estate should discuss the issue with the lawyer for the estate. If the husband denies that the agreement is binding, it may nonetheless be possible to convince a court that it should be enforced even though it was not yet signed. There is no way to evaluate whether the agreement is in proper form to be enforced, or whether a court might find a basis to deem it binding, without the opportunity to review the agreement and additional facts.

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