Should Prenuptial Agreements Be Used as an Estate Planning Tool?

A very common question that we will receive from our clients, especially clients that are preparing to enter into a second marriage, is whether or not a prenuptial agreement should be used as part of their overall estate planning strategy? Well, unfortunately, the answer to this question is that it depends upon the individual circumstances of the family. 

However, if you are entering into a second marriage and both parties have children and wealth that each person is bringing into the marriage, you should consider a prenuptial agreement as part of your overall estate planning strategy. A prenuptial agreement, especially with individuals involved in a second marriage, can put certainity upon the division of assets should a separation and divorce occur in the future. In addition, it can provide further comfort that the assets that took a lifetime to accumulate will be used to benefit the children of that individual. 

For example, Sue and James were both widowed earlier in life. Also, James and Sue both had two adult children each from prior marriages who were living on their own with their own families. However, Sue and James wanted to get married. Sue and James both had the same concern, if one of them were to pass away, each wanted all of their assets to go to their respective not children and not directly to the respective spouse. In addition, in the event of a divorce, Sue and James did not want their assets to be divided 50/50, much of which were assets that each had accumulated during the first part of their lives. 

Sue and James could alleviate their concern by establishing a prenuptial agreement, keeping their property separate and apart without comingling the assets, and establishing individual revocable living trusts and individual estate plans that provide for all of their assets to go to their respective children and not the respective spouse. Sue and James were quite relieved after establishing their prenuptial agreement and estate plan prior to the marriage ceremony, and were even more relieved to have the peace of mind of knowing that no matter what happens in the future, whether it is divorce, incapacitation, or death, that their respective children would be provided for and their respective children would not be denied their inheritance.