Planning Challenges: Marriage, Divorce and Remarriage
April 2009
A Florida case illustrates one big reason why it’s a good idea to regularly
update your estate plan.
Although this case is unusual, it shows how life changes can destroy the best of
plans or intentions. This case highlights the importance of updating those plans
after a life event, such as birth, death, marriage, divorce and remarriage. You
should especially heed these lessons if you:
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are divorced and have reconciled or might reconcile with your former spouse;
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are single and want to solidify control over your assets in preparation for a
future marriage; or
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are cohabitating with a significant other.
When Howard Herpich and Svetlana Ozerova married in February 2003, they signed a
prenuptial agreement in which each waived his or her rights to property that the
other brought into the marriage. This agreement also directed that, "in the
event of a separation and reconciliation," the document would remain binding.
One month after the wedding, the couple separated. Their divorce was finalized
in early 2005. In executing the prenuptial agreement, the couple divided up
marital assets accordingly and settled their joint financial affairs.
Six months later, the Herpiches reconciled and remarried.
When Mr. Herpich died two years later, Mrs. Herpich was appointed personal
representative over his estate. Mr. Herpich’s two adult children from his prior
marriage sought to prevent their stepmother from controlling any part of his
estate, claiming that the prenuptial agreement remained in effect.
The trial judge sided with Mr. Herpich’s children, determining that the
prenuptial agreement remained valid despite the divorce the separated the
couple's first and second marriages. The judge ruled that the terms "separation
and reconciliation" encompassed divorce and remarriage and essentially denied
Mrs. Herpich any control to her late husband's estate.
Mrs. Herpich appealed, and the appellate court reversed the trial judge's
ruling, finding that the “separation and reconciliation" wording in the
agreement cannot be considered the same as "divorce and remarriage.” The
appellate court ruled that the prenuptial agreement had been effectively
terminated by the 2005 divorce and was no longer binding, since the original
agreement's language had anticipated only one marriage between the Herpiches,
not a divorce and a remarriage.
Adapted from the Daily Plan-It newsletter. Hoopes,
Adams & Alexander, PLC, is a Chandler, Arizona, law firm offering services to
Phoenix-area clients in the areas of estate planning, entity formation,
commercial and real estate transactions, and civil litigation. |
