Prenuptial and Postnuptial Agreements and Your Estate Plan

In the absence of a prenuptial or postnuptial agreement, there is little you can do to disinherit your spouse from your estate if you pass away. Many people think prenuptial agreements are used only in the case of a divorce; in reality, this estate planning angle is often the reason for spouses to sign an agreement. Even with a will in place, the estate of a deceased individual can be divided up in an unintended manner to the surviving spouse. As a result, individuals leaving behind an estate often require agreements to assure the estate is properly managed.

Division of Estate Assets

The key thing to consider in your prenuptial or postnuptial planning is the exact marital property law of your state. Each state sets its own regulations, and some are more stringent than others. For example, a state with a 100 percent communal property law will require all assets in a marriage to be divided 50/50, regardless of who paid for the assets. Other states allow a judge to determine the proper portion of assets to provide to a surviving spouse. Typically, the spouse will get to choose between the physical assets or a portion of the total estate's value.

Disinheriting a Spouse

If you would like your spouse to receive a smaller portion than the law would provide for, there is little you can do in a will. A will does not absolve you of your spousal duty to share your marital property. The only such document that can do this is an agreement signed by both you and your spouse. The agreement would list which assets your spouse would inherit, if any, in the event of your death. You can then provide for the inheritance of other remaining assets in a will.

Assets in a Prenuptial Agreement

It is important to note that prenuptial agreements generally deal with the assets owned at the start of a marriage. These assets, which have been acquired before marriage takes place, do not become part of the communal property of the couple. This document can also list inheritance one spouse expects to receive on the estate of a relative that will not be shared as communal property. Upon the death of one spouse, these assets would be handed down to beneficiaries as the individual selected in a will or similar document. It is likely the will would go through a probate process, but the prenuptial agreement would be taken into consideration.

Opting for a Postnuptial Agreement

If the two individuals in a marriage did not enter it with a large disparity in assets, there may have been no perceived need for a prenuptial agreement. However, if they earn very different amount of incomes from that point forward, there may be question as to how the estate would be divided upon the death of the higher earner. It is possible to set up a post-nuptial agreement to establish some assets that would remain in the sole possession of the single spouse. If the surviving spouse has signed away rights to these items, they would be passed down as a will advised upon death.



Postnuptial Agreement



A postnuptial agreement can be designed and signed at any point in a marriage to predetermine how assets would be divided if the couple divorced. Postnuptial agreements are useful in the absence of a prenuptial agreement or if the financial situation of the couple, or an individual in the couple for that matter, has changed significantly. For example, if a member of a married couple inherits a sizable amount of money that was not considered in the prenuptial agreement, that person may request a postnuptial agreement. Postnuptial agreements may also be useful if a couple is entering separation. By hashing out some terms of divorce prior to entering legal discussions, the couple can make better decisions about the division of assets. 

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