Southwest Florida

How Prenups and Postnups Affect Estate Planning

Prenuptial Agreement

Second and third marriages are pretty common today for many reasons, so it’s not unusual for a married couple to say to me, “Neither of us needs money from the other when we die – we each want our own assets to go to our own kids and grandkids.” Or, “I got married last year, and I own our home in my own name. I want to leave my house to my adult child from a previous relationship.”

My response to statements such as these is, “Sure, we can do that as long as you have a good prenup or postnup.”

It generally comes as a surprise to many people that Florida won’t let you do whatever you want with your assets when you die. Florida decided a long time ago that the state has a financial and moral interest in preventing spouses and minor children from being disinherited and/or impoverished when a spouse or parent dies. So, there are a bunch of laws that restrict a married person or parent’s legal ability to give away property at death. In this article, I’m only going to focus on the laws that affect married people, not parents.

First, Florida has what’s known as an elective share statute. Basically, it says that a surviving spouse is entitled under the law to receive no less than 30% of all the assets owned by the deceased spouse, including assets given to other people by naming them as beneficiaries (such as on IRAs, 401(k)s, bank and investment accounts, life insurance, annuities, etc.), assets given away shortly before death, and assets owned jointly with others. If the surviving spouse doesn’t think he or she received at least 30% of all the assets the deceased spouse had any ownership in, he or she can sue for it in probate court.

Of course, when I tell couples this, they say, “We would never do that.” I then say, “Of course, you wouldn’t. But what happens if the surviving spouse is incapacitated? Can you guarantee that his or her Agent (probably a child) won’t sue to get everything they think should go to their parent? Of course, they will. They won’t care about any verbal agreement you had – they’ll use the law to their family’s advantage. Happens all the time.”

Next are the Homestead laws. If one spouse owns their Florida homestead in his or her sole name, and there is no minor child, the home cannot legally be given to anyone at the owner’s death except the surviving spouse. If the deceased spouse attempts to give the house to someone else in a will or trust, then a court will ignore that devise and the surviving spouse and the deceased spouse’s children (if any) will share ownership.

A surviving spouse is also entitled to certain personal property belonging to the deceased spouse, free from the claims of the deceased spouse’s creditors (except for liens against said property), such as household furniture, furnishings, and appliances in the deceased spouse’s home up to $20,000, and 2 motor vehicles.

A surviving spouse who is taking care of children is entitled to an allowance while a probate is being administered. A surviving spouse also has priority under the law to serve as the personal representative of the deceased spouse’s estate if there was no Will or the Will is declared invalid. Additionally, if a person executes a Will, later marries and doesn’t change his Will before he dies, the surviving spouse is entitled to all or half of the deceased spouse’s estate, depending on whether or not each spouse had children from or outside the marriage.

These are just some of the Florida laws that affect how married persons can leave their estate at death. Generally, these laws tend to affect married couples who have children from prior relationships, or prefer to keep their assets separate for other reasons.

But there’s an easy way to ignore all of these laws and do your estate planning however you want – do a prenup BEFORE you tie the knot, or do a postnup or spousal waiver AFTER you’re married. While everyone tends to think of prenups as divorce planning, a prenup also allows both spouses to waive all their rights as a surviving spouse under Florida law. No worries about the Homestead laws, the elective laws, etc. You can each leave whatever you want to whomever you want. And, of course, you can still provide for each other, if desired. Postnups are essentially post-marriage prenups, while a spousal waiver is strictly for estate planning and doesn’t address divorce at all.

Of course, waiving your rights in the event of divorce or the death of your spouse shouldn’t be taken lightly. Each spouse should seek separate legal counsel to make sure they understand exactly what they may be giving up.

And, your estate planning documents should declare upfront that a prenup, postnup, or spousal waiver was executed on xxx date and was still in effect when the estate planning document was executed.

So, if you have a situation where you’re not planning to leave everything to your surviving spouse, you should contact a Family Law attorney about getting a prenup or postnup, or talk to your estate planning attorney about a spousal waiver.

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