By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Litigation Attorney
In estate planning, it is not often discussed by and between counsel and a married couple to sign what is known as a no-revocation agreement or a mutual will with a non-revocation clause. It is an important agreement that many married couples should seriously consider signing to prevent estate distribution problems once one spouse passes, especially in a second or more frequent marriages with children. In re Estate Cosman, illustrates the dangers of not signing one of these agreements.
In short, the court ruled that an oral no-revocation agreement could not prevent a wife, who survived her husband, from changing the terms of their concurrent wills. In re Estate of Cosman, 193 N.J. Super. 664 (1983). Here are the facts: Husband had children with Wife #1. They divorced. Husband remarried. He married Wife #2. He had children with Wife #2.
Happily married and in their eighties, Husband and Wife #2 decided to draw up concurrent wills so that all of their children would receive their fair share of their joint assets. In this agreement, part of the estate was to go to the children from Wife #2 and another part to the children of Wife #1. They agreed orally not to change the terms of the will when either one of them passed.
Wife #2 survived her Husband and after his death revised her will. She excluded Wife #1’s children from the marital estate. When wife #2 passed and her will was admitted into probate, Wife #1’s children were upset and believed that they had a legitimate claim to the estate. What did the court say? The court ultimately ruled that the agreement not to revoke any part of the wills was not written and “the wills were silent as to [the no-revocation agreement’s] existence.” To be admitted into probate, the agreement must have been written, signed, or even arguably, at the very least, acknowledged by the concurrent wills.
What’s the short moral of this story? One spouse always outlives the other. To protect your agreement and understanding with your spouse or significant other – which concerns the division of all of your worldly assets, possessions, and interests – simply sign a no-revocation agreement and place it in your last will or write a standalone no revocation agreement to survive your death. Otherwise your children are at risk to be disinherited.
To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.