I am in my 50s and engaged to be married this year. I have grown children and so does my fiancé. We each have wills leaving our estates to our own children. Do we need to take any further steps to keep our assets separate?
The issue is not as simple as it seems, according to attorney Maureen Kinney. “When clients come into my office, they want to make sure they protect their children in the event of death, but it’s also necessary to think about the possibility of divorce,” she said, adding, “People don’t enter a marriage thinking they will get divorced, but the reality is half of all couples do get divorced.”
Couples entering a marriage naturally want to protect their children as well as each other, and the prenuptial agreement is the way to do it.
A surviving spouse has certain rights to inherit or receive a half interest in marital property upon death of a spouse. The surviving spouse can make a claim against the deceased spouse’s estate if no provision is made through a will or other estate planning document and if there is no prenuptial agreement. A prenuptial agreement best sets forth the intent of the parties to distribute the assets between the surviving spouse and children.
Without a prenuptial agreement, assets you bring to a marriage are considered marital in the event of a divorce and can be considered a mixed asset in the event of death. To avoid confusion, it’s best to set forth and define what exactly you want to happen with your premarital assets in either case.
Remember, if an asset is held jointly, the surviving spouse receives that asset, regardless of what your will or prenuptial agreement says.
Maureen Kinney is an attorney at Johns, Flaherty & Collins. For an estate planning lawyer in La Crosse WI, call Maureen at 608-784-5678.