Herpich v. Estate of Herpich

Svetlana Herpich (plaintiff) and Howard Herpich executed a prenuptial agreement in contemplation of marriage. In the agreement, Svetlana and Howard each expressly waived any rights to the other’s property. There was no dispute that this waiver constituted a waiver of surviving-spouse rights. The prenuptial agreement further stated that it would remain in binding effect even “in the event of separation and reconciliation.” The agreement also stated it would be incorporated but not merged into any subsequent judgment of divorce. Svetlana and Howard divorced approximately two years later and executed a final marital settlement agreement dividing all marital assets. Then, six months after the divorce was finalized, Howard and Svetlana remarried and stayed married until Howard’s death. After Howard’s death, Svetlana filed petitions to determine homestead status, exempt property, and family allowance. Howard’s two adult children from a prior marriage (defendants) challenged Svetlana’s petition for a family allowance, arguing that (1) the prenuptial agreement barred her from claiming any of Howard’s property and (2) the anti-merger clause in the prenuptial agreement proved that Howard and Svetlana intended the agreement to survive divorce and remarriage. The trial court ruled for Howard’s children, relying on the language in the prenuptial agreement stating that it would survive “separation and reconciliation” to hold that the agreement must also survive divorce and remarriage. Svetlana appealed.