Trying to get a settlement for my 79 year old mother in proceedings that have lasted over 3 years. Here’s where we are. Do not want a divorce from my mother’s second husband…our lawyer asking for separation and for them to remain married so that my mother may possibly receive VA benefits. He, however, continually brings up terms of the pre-nuptial agreement which to me makes no sense if the two remain married! In the pre-nup, each agreed to no support and that each of them would keep their separate property. Oh, crap. It’s just too convoluted to even explain! Anyway, the estranged husband has spent property deemed marital by a judge three years ago and there is nothing left! Now, “our” lawyer is saying that my mother isn’t entitled to supplemental medical insurance paid by her “ex” ? due to the terms of the pre-nup(?). How can the pre-nup be valid if they are not divorced??? Also, if they are not divorced, what claim can he make on my mother’s estate in the event of her death and vice-versa although he has spent everything? Yes, her separate property before the marriage remains as such, but what claims does he have and what claims does my mother have? Also, if this matter is settled in a separation agreement, are we safe? I am sorry. I have no better way of explaining this except for the fact that they will probably remain married. In the event he pre-deceases her, can she file for more social security since his is higher than hers? (a 24+ year marriage). Lord. This is a mess and I have no answers, but how can they keep claiming the pre-nup dictates? That’s what scares me. If married, what good does a pre-nup do? HUH?
The pre-nup becomes effective when the parties begin living separate and apart and are sorting out their property and support issues.
If they are not divorced he can claim what is called an “elective share” from the estate, a year’s allowance, a life estate in her real property, unless the pre-nup contains a waiver of these rights.
She should be entitled to his social security benefits upon his death.