Marital agreements are increasingly popular as families grow, change, divide and blend. Typical marital agreements include prenuptial, postnuptial, divorce and child custody agreements. Each of these types of agreements is intended to protect various family, property and financial interests and assets.
Often overlooked in these documents is how to preserve the arrangements made during life after the death of a spouse or ex-spouse. Marital agreements should take into account certain of the same issues that would be addressed in estate planning documents, in order to ensure your wishes are carried out. Below is a list of important life-planning considerations to take into account when thinking about marital agreements.
Do consider various future will and trust issues when planning a prenuptial or postnuptial agreement. Prenuptial and postnuptial agreements are often limited to distribution of assets in the event of a divorce. In contrast, wills and trusts typically dictate the assets and property to be distributed to a surviving spouse after the death of the first spouse. It is important to ensure consistency between nuptial agreements and wills and trust. If there is an inconsistency, some or all of the documents can be deemed invalid. It is also important to agree on whether the financial distributions applicable in the event of a divorce are intended to also be applicable at the time of death.
Don’t forget to contemplate in marital agreements child custody and guardianship issues in the event of divorce and death (including non-simultaneous death). Couples with minor children who get divorced often focus on where the children will live and how to share custody while both parents are living. However, it is important to also agree on who will be the children’s guardian in the event both parents pass away while the children are minors. Absent an agreement, the will and guardianship decisions made by the last surviving parent will be controlling.
Don’t forget to address whether spousal and/or child support is intended to continue even after the death. Absent agreement, the support is likely to cease at death, which may leave the living ex-spouse or parent in a devastating financial predicament, which could have consequences for minor children if the surviving spouse can no longer maintain his or her lifestyle or residence.
Do update estate plans and/or execute new estate planning documents after divorce or remarriage. Change-in-life circumstances often warrant a change in estate planning and your estate planning documents. Similarly, update all beneficiary designations on life insurance policies, IRAs and similar accounts in order to ensure consistency and that a former spouse does not unintentionally inherit. JN
Allison L. Kierman is the managing partner of Kierman Law, an Arizona estate planning law firm, and a member of Congregation Beth Israel in Scottsdale.