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Antenuptial Agreement May Not Avoid Claim Against Estate

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MARCH 11, 2002 VOLUME 9, NUMBER 37

Before David and Debra Pysell got married they signed an antenuptial agreement. When David Pysell died several years later without having written a will, Debra Pysell claimed a share of his estate. The executor of his estate objected, citing the antenuptial agreement, and the question ultimately had to be decided by the Virginia Supreme Court.

Antenuptial (or prenuptial) agreements can set out the property rights between two people before they get married. A typical antenuptial agreement might provide, for example, that the property each spouse brings into the marriage will remain his or her own. The Pysells made such an agreement, and even went so far as to agree that any income received by either of them would remain the property of the spouse receiving it.

When Mr. Pysell died without a will, his wife would ordinarily have been entitled to receive a share of his estate—in Virginia, this share is referred to as the “elective share.” She would also be entitled to additional sums as “family” and “exempt property” allowances.

There were two problems with Mrs. Pysell’s claim to a share of her husband’s property, according to the executor of the estate. First, the Pysells had been living apart since (as the executor characterized it) Mrs. Pysell had abandoned her husband some time before his death. Second, in the antenuptial agreement Mrs. Pysell waived any claim she might have to her prospective husband’s property.

Although the antenuptial agreement appeared to deal with all of the couple’s rights, however, Mrs. Pysell pointed out that it spoke only in the present tense. In other words, she argued that she had given up only whatever interest she might have in her husband’s property during his life, and not the claim she had against his estate when he predeceased her.

The probate court agreed with Mr. Pysell’s executor and denied Mrs. Pysell’s claims. She appealed to the state Supreme Court, and that court reversed the probate court ruling and ordered distribution of a share of the estate to Mrs. Pysell.

The Pysells’ antenuptial agreement did not contain any express language regarding the right of each spouse to inherit from the other. If Mrs. Pysell had clearly signed away her right to make a claim against her husband’s estate, there would have been no question that her later claim would have been dismissed. The state Supreme Court, however, agreed with Mrs. Pysell that the provision in which she waived any claim “whatsoever” in her husband’s property only meant any claim she might have during his life.

Two of the seven justices on the Court dissented, arguing that the language of the antenuptial agreement was clear. In their view Mrs. Pysell had, as the executor urged, given up “any claim, whatsoever, in the property of” Mr. Pysell. They were outvoted on the Court, however, and Mrs. Pysell received a share of her late husband’s estate. Pysell v. Keck, March 1, 2002.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.