Hi, I’m Liz Camaur from Camaur Crampton Family Law. I’m going to go over with you the top reasons for having a prenuptial agreement in your estate planning.
We’re all familiar with the term of a prenuptial agreement in terms of when there’s a divorce. As we know, many hostilities arise over financial issues. And people get married without any discussion or disclosure about each other’s finances.
And once they’re married, spouses soon discover that they disagree on financial issues. Having a comprehensive financial discussion before marriage, and putting the expectations into an agreement, can prevent these arguments later during marriage. But a prenuptial agreement can also be an essential document to secure your estate planning.
The first reason to use a prenuptial agreement in estate planning is to keep your estate out of probate. Many spouses use their estate planning tools to preserve their assets upon their death and avoid probate. However, when there is substantial separate property, for example, assets from before marriage, or a large gift or inheritance received during marriage, a living trust alone may not protect your estate from being subject to probate, and the large fees that go with probate.
A living trust typically is not an agreement, which changes the rights to community or separate property. Instead, it’s typically the memorialized intent of the person who passed away. In order to protect from probate, many times an actual agreement between the two spouses is needed to change the character of separate or community property in order to keep the estate out of probate.
The second way a prenuptial agreement can be used in estate planning is specifically for blended families. When people are on their second or subsequent marriage, many times they have children from a prior relationship. Conflicts can arise regarding assets that were intended for the children, versus assets that were intended for the new spouse.
Upon death, a spouse may have a claim in California to community property, and also to the spousal share of separate property. In order to properly protect your intent with your assets, the party should enter into a prenuptial or a postnuptial agreement with matching estate planning.
The third way a prenuptial agreement can be used in estate planning is for people who have been married later in life. Prenuptial agreements can be extremely useful for couples married later in life, or after accumulating substantial assets or wealth. Many couples look at estate planning more seriously as they get older, and they try to plan appropriately to avoid probate and disputes among potential heirs.
Without a prenuptial agreement, a surviving spouse may have the right to claim a percentage of the deceased spouse’s estate outright, and this could be problematic. For example, if the deceased spouse has a business and wants the business to continue with his partners, a prenuptial agreement can protect this intent. With a prenuptial agreement, the business can remain with the partners, and spouse can be protected through other assets and or life insurance.
However, without a prenuptial agreement or a postnuptial agreement, there is a possibility that the estate will be disputed in probate, and the assets liquidated to cover the costs of the probate.
Moreover, a prenuptial agreement can potentially override a will, or cause a case to be contested in probate if it does not match the provisions in the estate planning. Such confusion and conflict can be extremely costly. So it’s essential that, when you do prenuptial or postnuptial agreements, you make sure that the estate planning provisions match.
As we know, the fees from probate and the disputes from heirs can drain the estate and leave little or nothing for the intended heirs. Having a prenuptial agreement can protect against the unwanted battle and expense.
You should have the advice of a knowledgeable and experienced family law attorney before signing one of these types of agreements. If you would like to schedule a consultation with our office, give us a call at the number below, (949) 234-8280. Or check out our website www.divorce.legal. There’s no .com, it’s divorce.legal.
