Estate Preparations in Prenuptial Agreements

Prenuptial agreements are the only sure way to divide your estate according to your wishes after your marriage ends. It is fairly easy to cut many potential beneficiaries out of your estate, including extended family members and adult children. It is notably harder in all states to cut a spouse out of estate inheritance. If you are entering into a marriage with specific wishes and plans for your estate, you should consider a prenuptial agreement to assure these wishes are followed in the event of a divorce or your death.

Division of Estate upon Death

Even if you believe you and your spouse will never divorce, it is a very definitive reality that you will eventually pass away. If you are survived by your spouse, the spouse has nearly complete authority to use your estate in the absence of a prenuptial agreement. Even a will cannot cut a spouse out of the inheritance of an estate all together. In most states, the spouse is entitled to a fair share, often equaling 50 percent of the estate's value. Therefore, consider how you would like your estate to be preserved in the event of your death when you are writing your prenuptial agreement.

Division of Estate upon Divorce

Divorce can be the greatest threat to the wealth of an estate. Each state sets regulations for the division of assets upon divorce, but most use a statute of communal property. Property acquired during marriage is considered shared, often 50/50, between two spouses. If you would like to establish the fact that you are the primary earner and acquirer of assets, you must specifically list those assets which will be yours in the event of a divorce. For example, all real estate titled in your name may remain yours after divorce.

Assets Acquired before Marriage

A key factor in any prenuptial agreement is the determination of which assets were acquired before the marriage. In many states, these assets never become communal property. However, if they are not explicitly listed in a prenuptial agreement, it can be a great challenge to establish that they are not the property of both spouses. Therefore, an itemized list of all assets owned prior to marriage should be included in the agreement. It is then to be determine how these assets would be passed on should you pass away. It is best to list direct beneficiaries or place the assets in a trust if you have specific plans for them.

Assets Left to Children and Survivors

If you plan on leaving a portion of your estate to children who are intended to be beneficiaries, you should specifically list these wishes in a prenuptial agreement in addition to a will. Upon your death, even if your spouse inherits a portion of your estate, you can preserve your portion for gifts to beneficiaries of your choice. For example, children from a previous marriage may receive your portion of the estate. Making this clear during in prenuptial agreement may save your children the hassle of probate if your will is contested in any manner.

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