Tom McCutcheon – Attorney at Law
I apologize for the title but in the practice of law the regular occurrence of death often causes unforeseen problems, legally, morally and emotionally. The Alabama Supreme Court in its infinite wisdom has seen fit to disturb a fairly well settled area of the law in a way that will create litigation for years.
It is a fairly regular occurrence that after a long but unsuccessful first marriage, a person, typically a man, will have a fear of remarriage and have a long term girlfriend. Often when what turns out to be a last illness strikes, the man will marry the long term girlfriend out of a sense of obligation or fear that she may leave him or as a reward for caring for him throughout his final illness. Typically there are grown children and often they don’t like this short term marriage.
Remember that in Alabama you can not leave your wife less than one-third (1/3) of your estate. If you have no Will, it could be even more. Frequently, in second marriages with children from previous marriages, both spouses intend to leave the property they have accumulated to their own children only to learn after marriage that without an agreement before marriage, the new wife is entitled to no less than 1/3. If the agreement between two spouses is intended to be that each mature spouse with an accumulation of their own property is to leave that property to their own children there needs to be a valid pre-nuptial agreement.
Nonetheless, the Alabama Supreme Court has held that if a spouse is omitted the Court now looks to gifts that the decedent (the person who died) gave to the new spouse including jointly held checking accounts or life insurance. The size of the separate estate of the surviving spouse is relevant, the duration of the marriage is now relevant and it certainly wasn’t before. The Court has now held that testimony may be taken from others in regard to statements made by the decedent concerning transfers outside of the Will as those may be relevant to show the testator’s intent that the transfers be in lieu of a testamentary provision. Statements made by the testator concerning the old will in relation to the new marriage may be relevant to show that the testator examined the Will and did not change the Will.
Anytime the Court invites testimony by people who stand to benefit about what someone who has passed away said or meant is an invitation to lengthy and uncalled for litigation.
I am a trial lawyer. I have stood in the courtrooms of this State and other States for the last 27 years and what makes our system work is that a jury can see and evaluate the witness and their ability to perceive, remember and narrate what they have seen along with their sincerity or lack thereof. Those are the tools of the courtroom. People testifying about what they say a person who is no longer among the living said just doesn’t meet the standard for reliable testimony. This is a decision that invites long and bitter litigation.
Remember, you can not execute a valid pre-nuptial agreement post marriage.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-764-1124
