Regardless of whether a married individual lives in a separate property or a community property state, state law presumes by default that each spouse has an interest in property acquired during marriage. In some cases, this may extend to property that the other spouse brings into marriage.
In common law states operating under the Uniform Probate Code, a spouse has a right to an elective share in the couple’s assets. In community property states, each spouse generally owns a 50% interest in all income earned or assets purchased by the couple during marriage.
Premarital agreements can override these default assumptions.
What is a premarital agreement?
A premarital or prenuptial agreement (prenup) is a legal agreement that a couple may enter into before marriage that specifies the rights and obligations of each individual.
The subjects in a premarital agreement can be wide ranging, covering such matters as child custody, education, and spousal maintenance. Typically, a premarital agreement also specifies the terms for property distribution in the event that the marriage ends, whether that be upon divorce or death of one of the spouses.
How does a premarital agreement affect an estate plan?
The provisions in a premarital agreement, signed and agreed to by both spouses, supersede those in an estate plan and the state laws governing property distribution on death.
If you agree in a premarital agreement that your spouse will receive a certain share of assets in the event of your divorce or death, you can’t disinherit your spouse or make distributions in your estate plan that are less than the agreed upon amount.
If you wish to make distributions to your spouse in your estate plan different than those contemplated by the premarital agreement, you and your spouse should first modify or revoke the premarital agreement.
Can I still make my estate plan online if I have a premarital agreement?
You can still make your estate plan online if you have a premarital agreement, provided that you understand and abide by the provisions of your premarital agreement when structuring your estate plan distributions.
If distributions in your estate plan conflict with your premarital agreement, you face a higher risk of a contested estate administration proceeding and litigation. Such a contest could significantly increase the time and cost of administration, lowering the value of other gifts made to your beneficiaries.
If you have questions about creating an estate plan that abides by your specific premarital agreement, you should seek legal counsel from a competent estate planning attorney licensed in your state. See our recommendations on what to look for in an estate planning attorney and how to find one to get started.
