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Elective Share and Separate Property

May 16, 2008
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A recent Fairfax Circuit Court case highlights the need for premarital or marital agreements for blended families. In Higham v. Williams (CL2006-11954, March 28, 2008), the husband and wife maintained separate property throughout their marriage. The wife died, and the husband filed an elective share claim against her estate. The wife’s estate claimed that the parties maintained separate property so that they could leave their property to their respective children from previous marriages.

The husband and wife did not have a premarital or marital agreement that would prevent either party from electing a marital share of the other spouses’ property. The husband asserted that the court could not deny his elective share claims in the absence of such an agreement. The court agreed with the husband’s position, and held that it could not impose a premarital or marital agreement on the parties that waives the right of each spouse to claim against the estate of the other spouse, when the spouses did not make such an agreement themselves. The court could not impose such an agreement even though there may be concerns of fairness to the wife’s two children and one grandson. The court also considered which of the wife’s assets should be included in the augmented estate, and which assets should be excluded.

Blended families often have unique and complex estate planning issues. The attorneys at Oast & Hook can help blended families with their estate, financial, insurance, and long-term care planning needs.

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