McKIMMEY LAW OFFICE, P.C.
Twenty E. Ninth Street - The Aldridge - Suite 137 - Shawnee, Oklahoma 74801 - 405-275-3564
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McKIMMEY LAW OFFICE is one of the leading small law firms in the Shawnee, Oklahoma area, with a Statewide practice in all State and Federal Courts.
McKIMMEY LAW OFFICE is a general practice law firm. Our expertise includes Probate, Wills, Trusts, Real Estate, and Governmental Tort Claims, including Civil Rights litigation involving the Fourth and Fourteenth Amendments.
"An Affordable Attorney at Law"
Admitted to Practice - Oklahoma - 1974
United States Supreme Court - Tenth Circuit Court of Appeals
All United States District Courts of Oklahoma
From time to time we get an E-Mail that makes us realize that sometimes people can accidentally fall into a set of legal consequences they never intended.
Marriage is a contract between the parties that carries with it certain rights, obligations and consequences which may never be thought of when cupid fires his dart.
An E-Mail letter we received documented such a set of circumstances and legal consequences so clearly - and represents the plight of so many people we decided to reproduce it here.
We also reproduce here our response to the letter.
MY SISTER IS A VERY ILL LADY. SHE LOST HER FIRST HUSBAND AND IS NOW
REMARRIED. THIS MARRIAGE IS IN NAME ONLY.
HE DOES NOT AND HAS NOT EVER HELPED HER WITH ANY OF HER BILLS. SHE HAS TO HAVE SOME ONE WITH HER
AT ALL TIMES.
SHE IS A DIABETIC.
SHE HAS A WILL BEFORE SHE REMARRIED.
HER ATTORNEY HAS TOLD HER IT IS NO GOOD SINCE SHE REMARRIED.
CAN SHE HAVE AN AMENDMENT TYPED UP TO THE EFFECT THAT THIS IS A MARRIED IN NAME ONLY AND
EVERYTHING STATED IN THE ORIGINAL WILL SHOUD BE HELD UP TO BE TRUE.
SHE HAS TWO SONS AND THEIR FAMILIES IN WHICH SHE WANTS HER LAND AND EVERYTHING ELSE BE
GIVEN ACCORDING TO THE WILL.
WHEN SHE DIES, CAN HE GET THE LAND? WILL THE AMENDMENT BE ENOUGH???
Cannot second guess the opinion which has apparently already been given by your sister's attorney.
The effect of the second marriage on the Will is determined by the law of the State where your sister is a resident.
In Oklahoma, a surviving spouse has certain rights as provided in Title 84 O.S. Section 44 which he/ she may forfeit, but which cannot be taken away in a Will.
In Oklahoma, a surviving spouse may not be disinherited but has the right to elect to take the share to which he/she may be entitled under the laws of intestate succession as provided in 84 O.S. Section 213.
In Oklahoma the surviving spouse would be entitled to a 'child's' share of property owned by the deceased spouse which had been acquired before the marriage.
The State where your sister resides probably also has similar statutes.
The net effect is that the marriage actually changes the will in so far as it fails to make any provision for the spouse at death.
A marriage is a marriage - and one is not a marriage 'in name only'. - the marriage has all of the legal consequences the law provides for a marriage.
In answer to your question concerning typing up a document as an amendment to change the effect of the marriage on the will. It is possible that such a document could be prepared, but it would have to be joined into by her husband, acknowledging that he has no claim to any of her property which she owned prior to the marriage. See the second suggestion below.
She cannot unilaterally deprive him of any inheritance the law has provided by statute.
We always recommend that persons contemplating a second marriage prepare an Ante-nuptial agreement, providing that neither party claims an interest in the property of the other which was acquired prior to the marriage.
Your sister's circumstance is precisely the situation which could have been avoided by such an ante-nuptial agreement.
Two possible solutions, depending on the laws of the State where your sister resides, and upon the agreement of her present spouse.
- 1. - Divorce - prepare ante-nuptial agreement - then remarry; or
- 2. - It might be possible, depending on the laws of the State where your sister resides, to prepare a documentation of a pre-existing 'oral' ante-nuptial agreement.
Your sister's attorney may have other possible suggestions, and you should depend upon his advice - not mine - since he / she is more acquainted with the laws of your state, and with the circumstances.
What is a Pre Nuptial Agreement?
A Pre-Nuptial Agreement, otherwise known as an ante-nuptial Agreement is a contract entered into between parties who contemplate entering into a marriage.
The primary purpose of such a contract is to clarify the rights of each of the parties in and to the property of the other party, subsequent to the marriage.
By the use of such an instrument the parties may protect the property they owned prior to the marriagefrom the claims of the other party in the event of a divorce, or from the claims of the other party in the event of death.
A Pre-nuptial Agreement is not just for the rich.
A Pre-nuptial Agreement is not just for the greedy.
- The extent of actual protection is governed by the laws of the state of the residence of the parties, and may vary from State to State. You need to consult with an attorney in your own state to determine the full extent of protection which such an instrument may provide in your circumstances.
- Such a contract does not serve to limit the rights of either of the parties to any property which has been acquired during the marriage.
- Over time, and in a marriage of long duration, the agreement becomes less effective as the parties begin to comingle their assets. If the parties intend to have the agreement have permanent effect then periodic checkups should be made with an attorney in any case where any transfer of separate property is contemplated.
- Separate property which you subsequently place in joint tenancy loses its identity as separate property and becomes the property of the surviving spouse on death - and in the event of divorce, is part of the joint assets of the marriage.
Who Needs a Pre Nuptial Agreement?
- Everyone entering into a second marriage that already has children for whom he / she wishes to have the property acquired prior to the second marriage.
- Everyone entering into a first marriage having identifiable property which was previously acquired.
- Persons entering into any marriage where there is a noticable disparity in the respective assets between the parties.
Are These Agreements Expensive?
In most cases the costs of a Pre-nuptial Agreement may be the cheapest insurance you ever have that will protect your property.
Depending on the extent of your property, a rather simple agreement may be prepared at a low cost.
If you have a large amount of property that must be itemized and identified in the agreement, then the cost is increased.
For our charges See - - Schedule of Fees and Services
Also - We prepare Pre-Nuptial Agreements Online -
If you have a question of a general nature that you feel should be included in this segment, please let us know.
We also would like to receive comments and suggestions for better Answers.
Although we cannot give specific legal advice on the phone we are willing to answer questions of a general nature.
If your question is of general interest we may include your letter and our response as a part of our website.
- 2001 - 2015 - Joseph E. McKimmey