In the Matter of the Estate of Zimmerman

Wallace and Sarah Zimmerman (plaintiff) married in 1954 and got divorced in 1982. The court overseeing the divorce proceedings divided the marital assets but did not take into account Wallace’s military retirement pay. Sarah and Wallace subsequently remarried. Before the remarriage, they entered into a prenuptial agreement in which they defined their interests in case of divorce. Specifically, any property either of them owned separately before the remarriage would remain the property of that party in case of divorce. The disposition of property acquired during the second marriage would be settled by the parties or by the court in case of divorce or separation. Likewise, Wallace’s military retirement benefits would be considered a marital asset to be considered by the court in case of separation or divorce. A year after the remarriage, Wallace and Sarah began to live apart in an informal separation. Subsequently, Wallace executed his will, devising all his property to his children, subject to a qualification concerning Sarah. Specifically, Wallace stated that if he was still married to Sarah when he died, he was leaving Sarah the legal minimum, but if they were divorced, Sarah would not receive anything. Wallace and Sarah continued to live apart, but neither sought a divorce or a legal separation or a division of property. When Wallace died, Sarah sought an elective share in Wallace’s estate. The probate court denied Sarah’s claim to an elective share on the grounds that Sarah had waived her rights as a surviving spouse to an elective share in the prenuptial agreement. Sarah appealed.