December 5, 2013

Later in life marriages, as well as second and third marriages that produce Blended Families, are increasingly common. Spouses entering into these marriages usually have more assets and, often, previous children that they would like to provide for in their will. For these couples, a recent article explains why it is important to incorporate your prenuptial agreement into your estate plan.

Importantly, if a married couple without a prenuptial agreement divorces, the surviving spouse is guaranteed a portion of the deceased spouse’s estate. This portion is known as the ‘elective share,’ and is different in every state. If the deceased spouse attempted to disinherit the surviving spouse or left him or her less than the elective share amount, the surviving spouse can elect to take the ‘elective share’ amount instead.

There are many reasons why the deceased spouse may not have wanted this. For example, the surviving spouse may be financially solid without the deceased spouse, and the deceased spouse would rather the assets go to children from a previous relationship. One of the few ways to block the surviving spouse from taking the elective share amount is to put it in a prenuptial agreement. If you have a prenuptial agreement and plan to do this, be sure that the estate plan and prenuptial agreement are coordinated with each other so that there is no confusion as to your intentions.  Another option is to gift assets into trust during lifetime with specific instructions as to what can/should happen upon death.