By Daniel B. Evans
Copyright © 1995-2008 Daniel B. Evans. All rights reserved.
(Last updated 4/6/2008)
This summary has been prepared to explain marital rights and marital agreements to clients and other interested persons. Unless otherwise noted, all references are to the laws of Pennsylvania.
In the absence of an agreement, a husband and wife will have the following rights and obligations:
Support During the Marriage. During the marriage, either the husband or wife may be required to support the other party.
Death During the Marriage. Upon the death of a married person:
Family Exemption. There is a "family exemption" of $3,500.00 which may be payable to the surviving husband or wife from the estate. (Other states may have "homestead" statutes or other rights to property of the deceased spouse.)
Intestate Rights. If a husband or wife dies without a will, or with a will executed before the marriage, the surviving spouse is entitled to the entire estate if the decedent died without any surviving children or parents. If there are surviving parents or children (and all of the children are also children of the surviving spouse), then the surviving spouse is entitled to the first $30,000 of the estate and one half of the balance of the estate. If there are surviving children one or more of whom are not children of the surviving spouse, then the surviving spouse is entitled to half of the estate. The "estate" for this purpose and for the purpose of the elective share described below means only assets in the name of the decedent and does not include life insurance, jointly owned property, or retirement benefits. (Other states provide similar shares of the estate for a surviving spouse when there is no will.)
Elective Share. Regardless of what a decedent might provide by will, a surviving husband or wife may elect to take one third of the estate and one third of certain other transfers made during lifetime, such as transfers into joint names with other persons and transfers with retained rights to income or other powers. There is no right of election against life insurance or retirement benefits, but if those benefits are payable to the spouse they reduce the rights of the spouse in other transfers. (Other states have similar laws for elective shares.)
Retirement Benefits. Under federal law, a surviving husband or wife may have rights in pension, profit-sharing, or other qualified retirement benefits provided by the employer of the deceased spouse.
Rights upon Divorce. Upon the divorce of a husband and wife, the court granting the divorce may order:
Spousal Support. Either party may be required to pay support to the other for a period determined by the court. (Most states now provide for some form of support or alimony following divorce.)
Child Support. Either or both of the parties may be required to pay for the support of their children. (All states provide for the support of children.)
Division of Marital Property. There may be an "equitable division" of all "marital property." "Marital property" generally includes property acquired or earned during the marriage and does not include property owned before the marriage, or gifts or inheritances received during the marriage, but does include income from those properties, as well as increases in the value in those properties. "Equitable division" is not necessarily an equal division, but depends on the length of the marriage, the contributions of the parties to the marital property, the earning capacities of the parties, and other factors.
Most of the rights of a husband and wife can be modified by an agreement entered into before or during the marriage.
Purposes of Agreement. A marital agreement may have one or more of the following purposes:
Protection of Children. To protect the inheritances of children from a prior marriage.
Protection of Family Assets. To protect family businesses, farms, homes, or other assets received from parents or other family members, or in which other family members have interests.
Reduced Expenses and Uncertainty. To reduce the expenses of contested divorces and the uncertainty of court ordered property divisions and support.
Avoidance of "Windfall". To reduce large shifts of assets between a husband and wife after a relatively short marriage ended by death or divorce.
Rights Modified. All of the property and support rights of a husband and wife can be waived or modified by agreement except:
Support During Marriage. An agreement waiving or limiting support during the marriage may be unenforceable.
Child Support. The right of a child to support cannot be limited by an agreement between the parents.
Retirement Benefits. Rights in qualified retirement benefits may be waived only in accordance with federal law.
Contractual Requirements. In order for a marital agreement to be legally binding:
Writing. An oral contract might or might not be enforceable, but is difficult to prove, so all marital agreements should be in writing and signed by both parties.
Consideration. There must be mutually binding promises which have value, or other consideration for the promises of the parties. In the case of an agreement entered into before the marriage of the parties, the marriage itself is considered to be sufficient consideration for the agreement.
Disclosures. By statute (23 Pa.C.S. § 3106), a marital agreement is not enforceable if a party can prove that:
There was not a fair and reasonable disclosure of the assets and obligations of the other party; and
The party did not voluntarily waive, in writing, right to disclosures beyond the disclosures actually made; and
The party did not have an adequate knowledge of the assets and financial obligations of the other party.
To avoid disputes about what was or was not disclosed, it is recommended that there be full written disclosures by both parties of their assets and incomes, and that the disclosures be attached to the agreement signed by the parties.
The Pennsylvania Estate and Trust
Daniel B. Evans, Attorney at Law
P.O. Box 27370
Philadelphia, PA 19118
Telephone: (215) 233-0988
Telecopier: (215) 233-1887