Why a Prenup Should Be Part of Your Estate Plan

Photo by Kristina Litvjakon Unsplash

When most people hear about pre-nuptial agreements or “prenups,” they largely associate them with being “safety nets” for their assets in the event of a divorce. However, prenups are also very important documents for other life events involving spouses, such as the death of one of the partners. 

If you’re married, or soon-to-be married, and creating your estate plan, you should consider adding a prenup. Here’s why:

Prenups Define “Personal Property” from “Marital Property”

The primary function of a prenup in any situation is to define what property is personal property and what is shared property (marital property). This is especially important in the event of a spouse’s death because without a prenup, it is possible that personal property of the surviving spouse may be distributed against their wishes. 

With a prenup, it is much clearer which assets are held by whom, and in the case of divorce especially, it protects personal assets from being distributed to your spouse against your wishes. 

What happens if I die without a prenup? 

If you happen to die and your spouse survives and you do not have a prenup in your estate plan, your Will defines how your assets are divided. However, in equitable distribution/community property states and when you die without a will (“intestate”) your spouse is entitled to an “elective share” of your estate. This can be anywhere from a third to half of your shared assets, depending on your state. If in your will you choose to leave your spouse less than what their “entitled share” may be, they can petition the probate court for a higher percentage. 

The only way to truly protect your assets from your spouse requesting more than your desired share is to have a prenup defining a certain amount of your assets as personal property that are not subject to being part of the elective share. 

Can I get a prenup after I’m already married?

The short answer is yes, you absolutely can. The purpose of a prenup is to define what assets are personal and thus not a part of the shared partnership of marriage, and what assets are shared in the marriage. This can be defined even after you are married, and many estate planners will advise you to do so. It allows you to divide up your estate more precisely and leaves less to chance in the event of divorce or death, making both processes far easier on everyone involved. An experienced estate planning attorney can help you through every step of the process and ensure that you have a sound prenup that works for everyone. 

At The Law Office of Dawn Trainor-Fogleman, , I am available to help you plan for life’s most unexpected events. Call (301) 456-0982 or fill out this convenient form for a FREE consultation to review your estate planning needs. With over 25 years of legal experience in the District of Columbia and Maryland, I am dedicated to making estate planning easy and affordable, so that everyone can enjoy peace of mind and security for their loved ones.