Sign here X_____ before you say I do.
Valentine’s Day is all about forever — forever love, forever commitment, forever partnership. But what many couples don’t realize is that a prenuptial agreement after death can have just as much impact as it does in divorce. A prenup doesn’t automatically disappear when one spouse passes away. In fact, it can shape inheritance rights, elective share claims, and how your estate is distributed
Courts tend to look prenuptial agreements from a contract prenuptial. Ultimately fairness is the idea. They’ll ask questions like: did both parties consult a lawyer before they tied the knot? Was there enough time between the time they signed and the time they got married? Are the terms so strict they hurt the rights of the benefits of the children should they have them. If enforced would one party become a public charge?
Photo by Drew Coffman on Unsplash
Recently a colleague of mine told me they had a client who came in. Their wife had just passed, it was sudden, he was distraught. He had signed a prenumptial agreement and wasn’t sure where this left them.
He reviewed the contract and was shocked. The terms were extremely one sided. His wife entered the marriage with over a million dollars in assets, the husband less than ten thousand dollars. The worst part was the terms specifically stated if no estate plan was created the husband gained nothing.
The husband lived in their home, but it was in the wifes name because he didnt have the credit at the time. Who would inherit the home?
What happens when a prenumptial agreement is so unfair that it would leave one party destitute after a person dies.
Life Aint Fair Bro
Remember I said that courts will look at an agreement with an eye towards fairness? That is exactly what they will do. The lengthily probate case that will follow will include a petition to render the prenuptial agreement null and void giving the husband what he would normally would under state law.
The lesson here is that while prenuptial agreements are a good tool they become really messy without proper estate planning. They go hand in hand to make sure that your assets are protected and your wishes are carried out when death does you part.
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