Till Death Do Us Part … & Maybe a Little Later – on Heritance & Prenup

Till Death Do Us Part … & Maybe a Little Later – on Heritance & Prenup

Written by

Gilad Bar-Ami
September 28, 2023

A woman gets to heaven and immediately searches for her deceased husband, whom upon seeing her approaching immediately pulls out the marriage vows and points to "until death do us part". Similarly, also in real life the death of a spouse raises the question as to the where the term "spouse" ends and becomes "deceased" and the rules governing the relationship between the heirs and the estate apply. Thus, there may be a contradiction between the provisions of a prenuptial agreement (prenup), which by its very nature applies to the relationship between the spouses while they are alive, and the provisions of the inheritance laws that regulate the issues after a person's demise.

The Israeli Inheritance Law states that an agreement regarding a person's inheritance made during his lifetime is void. Thus, while spouses may enter a prenup regarding the division of property between them in the event of separation for various reasons, a provision in the prenup that refers to the division of property in the event of separation (including due to death) is valid, while provision that refers to the estate itself, that is, to the deceased remaining property after the division between the spouses, is subject only to the inheritance rules.
Thus, in a case heard at the Supreme Court in July 2023, it was held that a widow is entitled to half of her deceased husband's estate, despite the provisions of the prenup. In that case, the prenup established a complete property separation between the couple according to the principle "what is mine will remain mine, and what is yours will remain yours". The prenup also explicitly stated that this principle would also apply in the event of the marriage ending "for any reason" - that is, in the event of the marriage ending due to divorce or death of one of the spouses. The heirs contended that this provision should be seen as evidence that the deceased did not intend to leave even a small part of his property to the widow and therefore it should be seen as a testamentary provision excluding the widow from all rights in the estate. The Court rejected the heirs’ argument and held that the principle of "what is mine shall remain mine, and what is yours shall remain yours" stipulated in the prenup sets that all the property of the deceased must be associated with his estate, but what belongs to his estate is governed by the inheritance rules and not the provisions of the prenup.

It should be noted that even in cases where the prenups includes a reference to the matter of the estate, the provisions of the Inheritance Law will take precedence and the estate will be divided among the heirs in accordance with its provisions. However, in borderline cases the Court will tend to interpret the prenup in a manner that does not deem it annulled. In a case heard before the Supreme Court in April 2021, the provisions of a prenup were discussed in relation to proceeds received from renting a property after husband's demise. The Court construed the provisions of the agreement as defining the scope of the estate and not as referring to the estate itself and thus left the prenup intact.

As Mrs. Gump said - "Death is just a part of life, something we’re all destined to do" and thus we all need to prepare for it. So, while a meeting one's spouse in the afterlife is not certain - death and the need to divide one’s estate is probably only a matter of time and one must prepare for this, both by drawing up a prenup for the purpose of defining the scope of the estate and by drafting a will providing clear instruction as to the division of the estate.