‘Til Death do Us Part: Marriage and Estate Planning

Prenuptial agreements have a stigma of foreshadowing a divorce, and many couples opt not to create one. For estate planning attorneys, this can create problems when a deceased spouse wants to leave assets or property to someone other than the surviving spouse.

When two people become married, they are legally bound to each other. Because of this, one spouse gains certain legal rights in the other person’s property. Some states have “elective share” statute that provides that upon the death of a spouse, the surviving spouse has a right to a certain percentage of the deceased spouse’s estate, even if the decedent’s will specified otherwise.

This is where the dreaded prenuptial agreement can be beneficial. Instead of utilizing it in the case of a divorce, it can be used when one spouse passes away. Having a prenuptial agreement allows each spouse the flexibility to change the way they dispose of their assets upon death, whether it be to children, charities, or distant family members.

See Meredith Murphy, ‘Til Death do Us Part: Marriage and Estate Planning, Salawus.com, September 18, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.