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Planning for Divorce

Here are a few estate-planning issues engaged couples should address.

By John J. Scroggin, JD, LL.M.

Probably the last thing an engaged couple cares to do is meet with their paranoid lawyers to discuss the possibility of their premature death, incapacity or divorce. However, this should be a vital part of their preparation for marriage. Here are a few documents your clients should consider.

Marital agreements
With 49 percent of all marriages in the United States ending in divorce, prenuptial agreements have become a significant part of the estate-planning and asset-protection process. The following are some things to look out for:

Make sure that the prenuptial agreement thoroughly discloses the assets and liabilities of each person. Be as specific as possible. Listing specific account numbers and the date of valuation may be an important element when a judge or jury subsequently reviews the agreement.

Make sure that each party has independent competent legal representation in the development of the agreement. A court might rule that the less wealthy spouse lacked an adequate understanding of the agreement because competent independent counsel was absent.

Sign the agreement well in advance of the wedding. If one of the spouses has not had adequate time to review the agreement (for example, it is delivered the day of the wedding), the court could say the signature was coerced and invalidate the agreement.

The agreement should not create an “unconscionable” result. This is an ambiguous concept at best. For example, in Dematteo vs. Dematteo, the Massachusetts Supreme Judicial Court found that upon the divorce, a husband (worth $83 million to $108 million) with a prenuptial agreement that provided the ex-spouse with an annual payment of $35,000, the marital home, an automobile and medical insurance until death or remarriage, was not unconscionable.

Marriage necessitates an evaluation of whether the couple should revise their estate-planning document.

Make sure the agreement provides for relinquishment not only of rights in divorce, but also deals with the rights of either spouse against the estate of a deceased spouse.

Federal law provides that a spouse’s right to an ERISA retirement plan cannot be waived before the marriage of the parties. Thus, if the parties intend for such waiver, a renunciation of such rights should be signed after the wedding takes place. A waiver before the wedding may be void.

A growing phenomenon has been the development of postnuptial agreements. In most cases, these are the result of some traumatic event in the marriage (an affair, for example) and the case law around them is still developing.

New planning documents
Marriage necessitates an evaluation of whether the couple should revise their estate planning documents. Before the wedding, clients should carefully consider whether changes are appropriate in their designations of the decision-makers in their medical and general powers of attorney, such as should the new spouse be appointed? Beneficiary designations on retirement plans, annuities, life insurance and other assets should be reviewed. In most cases, the clients are well advised to review and modify their wills. Here are some reasons for adopting new wills:

In some states, marriage automatically revokes all previous wills that were not drafted in contemplation of marriage. This can create some unique legal conflicts. For example, if one of the newlyweds dies, the marriage revocation will result in an intestate estate. If there are no children, the new spouse could inherit 100 percent of the estate. If there are children, the children and the new spouse may share in the estate as intestate heirs.

There could be difficulties even if the couple signed a prenuptial agreement but failed to sign new wills. For example, assume a couple married and neither had children. Both are injured in a car accident. The wealthier wife dies at the scene and the husband dies the next morning. Under the intestacy laws of most states, the husband inherits 100 percent of the wealthier spouse’s assets for the last few hours of his life. The only intestate heir of the husband is his family, who has a financial incentive (100 percent of the wife’s assets) to argue that the prenuptial agreement did not govern intestate rights that could not accrue until after the wedding.

The possible automatic revocation of an existing will eliminates the disposition and tax provisions of the couple’s prior wills. Thus, bypass or unified credit trusts, generation-skipping trusts, provisions for supplemental trusts for handicapped heirs, trusts for minor or spendthrift heirs and similar provisions could cease to exist as of the date of the new marriage.

Even if the will disinherits the surviving spouse, the spouse may still have a right to make “elective share” claims against the estate of the deceased spouse. Such rights vary widely from state to state but can provide substantial benefits to the surviving spouse and often cannot be taken away by a decedent’s will. A prenuptial agreement may waive such rights.

John J. Scroggin, JD, LL.M., is a speaker and author who has written more than 230 articles, outlines and books. You may reach him at


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