Article on Virginia’s Premarital Agreement Enforcement at Death

Andrew F. Gann, Jr. recently published an Article entitled, Prenuptial Agreements and Fraud on the Widow’s Share: A Look at Virginia’s Law on Premarital Agreement Enforcement at Death, 23 Va. J. Soc. Pol’y & L. 231 (2016). Provided below is a summary of the Article:

Each year over 50,000 Virginia residents get married. Before many of these marriages, couples decide that they will enter into a contract, known as a premarital agreement. This agreement determines their rights to each other’s assets. While these contracts are usually formed due to the contemplation of a future divorce, a premarital agreement also becomes important at another marital event–the death of a spouse. In this note, I analyze the importance of premarital agreements during the probate process and examine the Supreme Court of Virginia’s case law on premarital agreements at the death of a spouse. The case law is surveyed to show that the court provides significant uncertainty that could ultimately allow couples to enter into an agreement that renders the surviving spouse helpless to obtain sufficient funds to survive. This helplessness occurs all while neither spouse truly understands the importance of these agreements. After providing this background, and exploring the problems that a surviving spouse could face, I suggest a new framework that the court could adopt that is supported by both common-law principles and the goal of protecting the surviving spouse.