Pasternak & Fidis Reporter

February 12, 2016

Enforcing Death Provisions in Premarital and Postmarital Agreements

A premarital agreement is a contract between prospective spouses that defines each spouse’s property rights and obligations in the event of death or dissolution.  A postmarital agreement is a contract between spouses who have no immediate plans to divorce and can do the same things that a premarital agreement can do.  Some agreements require a party to make specific provisions for a surviving spouse, such as a cash bequest, transfer of an asset, such as a home, or a portion of the deceased spouse’s estate.  When a deceased spouse is obligated to make provisions for a surviving spouse, and fails to do so, the surviving spouse must take legal action to enforce the contract.

How Assets Pass to Surviving Spouses at Death

A decedent’s property can be distributed by will, trust, beneficiary designation, right of survivorship, intestacy, or any combination of these.  A will prescribes the distribution of most property titled in a decedent’s sole name.  A revocable trust is often used as a will substitute.  Certain types of property, such as retirement accounts, life insurance policies, and jointly titled real or personal property, go directly to the beneficiary or surviving joint owner, outside of the decedent’s will or trust.  Maryland law determines which persons will take the property.  A premarital or postmarital agreement requires that the spouse meet his or her obligations by one or more of the above methods.

Surviving Spouse’s Rights and Entitlements under Maryland Law

Under Maryland law, a surviving spouse is entitled to:  (1) an allowance of $10,000; (2) one half or one third of the deceased spouse’s net estate, even if the will leaves the spouse nothing; (3) be personal representative of the deceased spouse’s estate, unless the will provides otherwise; and, (4) at least one half of the deceased spouse’s net estate if the deceased spouse died intestate.  Maryland law permits spouses and prospective spouses to waive these rights by written agreement.

Review of Premarital or Postmarital Agreement upon Death of Spouse

Upon the death of a spouse, a surviving spouse with rights under an agreement must first ascertain whether the deceased spouse met his or her contractual obligations.  The surviving spouse must review the agreement, and the deceased spouse’s will, trust documents, beneficiary designations, deeds or other title documents for real estate, and bank and brokerage accounts.  He or she should evaluate the totality of the deceased spouse’s assets and liabilities.  The review should also include any provisions in the agreement for payment of legal fees incurred as a result of a breach, and whether a dispute about breach must go to binding arbitration.  The surviving spouse should have an experienced estate administration attorney assist with this review.  Due to the short timeframe in which the surviving spouse must act to protect his or her interests, a surviving spouse should get legal advice as soon as possible after the deceased spouse’s death.

Surviving Spouse as Creditor of Deceased Spouse’s Estate

When a deceased spouse has breached an agreement to provide for the surviving spouse, the surviving spouse must timely file a claim as a creditor of the estate.  A creditor’s claim against a decedent’s estate is forever barred unless presented within the earlier of (1) six months after the date of the decedent’s death, or (2) two months after the decedent’s personal representative delivers notice of appointment to the creditor.  Notably, a claim must be filed by the six-month deadline even if no estate has been opened, and even if the surviving spouse is the deceased spouse’s personal representative.  Filing a claim is simple:  the creditor fills out a one-page form, describes the details of the claim, and files it with the Register of Wills.

Generally, breach of a premarital or postmarital agreement does not make the agreement invalid.  Rather, the unmet obligation is enforced through ordinary contract remedies.  For example, if the deceased husband was obligated, but failed, to leave $100,000 in cash to the wife, her breach of contract claim can be satisfied by payment of the claim from his probate assets.

There may be circumstances under which a surviving spouse claims that the parties abandoned an agreement or that the agreement is invalid because of duress or another legal theory.  If a court ruled in the surviving spouse’s favor, any spousal rights waived in the agreement could be restored.  A surviving spouse must elect to take the statutory share within the later of nine months after the spouse’s death or six months after the appointment of a personal representative.  Thus, a surviving spouse who—as a creditor—is seeking to enforce an agreement should consider also filing an elective share claim, even if he or she waived this right, to avoid missing the elective share deadline.

These deadlines are strictly enforced.  Therefore, all claims should be filed within the statutory deadlines, even contingent claims.

Third-Party Beneficiary Claims

An agreement may obligate a spouse to provide a bequest to someone other than the other spouse, e.g., a child.  If a deceased party fails to satisfy an obligation to a third party, the beneficiary must file a claim against the deceased party’s estate within the creditors’ claims period.  Such a claim can arise at the death of the first spouse to die or upon the later death of the surviving spouse.  For example, a premarital agreement might provide for the husband to leave the family home to the wife, if she survives him, and for her to leave the home to his child upon her death.  If the wife dies after the husband and fails to make this provision, his child—as a third-party beneficiary—must file a timely claim against her estate.


A primary benefit of a premarital or postmarital agreement is the parties’ ability to write their own rules for property rights at death and divorce.  The mere existence of a valid agreement, however, does not guarantee that the spouse (or third-party beneficiary) will receive the bargained-for benefits.  Rather, the surviving spouse (or third-party beneficiary) must take action to enforce the terms of the agreement.  A widow or widower who was party to an agreement should seek the advice of an estate administration attorney who is experienced in these issues as soon as possible after the spouse’s death.