Prenups have earned a bum rap for being unromantic, like a couple is planning for divorce before they even tie the knot. Prenups aren't just documents that safeguard against disaster in the event you break up, however. They can be a great component of estate plans as well, particularly if you're marrying for the second time. You and your spouse can agree to exactly what becomes of your assets in the event of your deaths without allowing the law to override your wishes.
Community Property States
The nine community property states – Wisconsin, Idaho, Texas, New Mexico, Louisiana, Arizona, Washington, Nevada and California – are unique in the way they distribute assets when one spouse dies. If you live in one of these states and create a will or a trust, you can only give away your separate property and half your marital property when you die. Your separate property includes anything you owned before you got married. You can leave these assets to anyone you like, but if you try to leave more than 50 percent of the property you and your spouse acquire after you get married, community property law will put a stop to it. The court won't honor the terms of your will.
Elective Share States
In all but one of the other 41 states – Georgia – the laws allow your spouse to take court action to override the terms of your will if she doesn't like its contents. You can't disinherit your spouse in these jurisdictions. If you try, she can "elect against" your will and demand an elective share percentage of your estate instead, usually about a third of your separate and marital property added together. The law will essentially throw your will out and give your spouse what she asks for, even if you name your kids from a previous marriage as the sole beneficiaries of everything you own.
The Power of a Prenup
You probably don't want the bulk of your property passing in ways you never intended and either omitting your kids or leaving them next to nothing. If your new spouse is an heiress and doesn't need your money or assets, you can create a prenuptial agreement directing that she receives nothing and your children from your previous marriage get everything when you die. If you're part of a family business that you were involved with long before you ever met your spouse, you can direct that your share of this asset revert to your family at your death regardless of the laws in your state. You can leave your spouse a small token bequest and everything else to your kids to guarantee them a good start in life when they get older, and the prenup will supersede elective share law. You can leave your kids – or even their other parent – more than 50 percent of your marital property if you live in a community property state. Prenuptial agreements override both community property and elective share law.
A prenuptial agreement can nix statutory law because it's a contract between two people who waive their respective rights to the other's estate, among other things. But prenups only work if they meet the letter of the law, and this can be tricky because the rules vary a little from state to state. Both spouses must sign the prenuptial agreement and they have to do it of their own free will. You and your spouse must each voluntarily and knowingly agree to the prenup's terms. Most states require full disclosure – both you and your spouse must come clean about the full extent of what you owe and own. Otherwise, you don't know exactly what you're waiving. Some states require that a separate attorney represent each of you. As a precaution, you can have a lawyer draw up your prenuptial agreement or at least review it before signing, so you're sure it will hold up in court. You can also back up your prenup with a will that mirrors its terms.
- Cornell University Law School: Elective Share
- Law Offices of Shahram Miri: Community Property in California
- Louisiana Law Review: Community Property vs. the Elective Share
- Bosco Law Firm: Prenuptial Agreements as an Estate Planning Tool
- Lennington Law Firm: Four Common Misconceptions About Prenuptial Agreements (PDF)
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.