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LJN NewslettersNewsSectionsThe Matrimonial Strategist

Pre-Nups: Estate Planning

BY Ellen Schiffer Berkowitz
October 01, 2004

When drafting and executing prenuptial agreements, the parties are generally concerned about protecting their assets and delineating their rights upon divorce. In addition to provisions in the event of divorce, however, careful attention also must be paid to the disposition of one's assets upon death. The provisions in the event of death may be particularly important where the assets to be protected were received from one's family or are comprised of a family business. Depending upon the circumstances, the death provisions of a prenuptial agreement may be used to negotiate more favorable divorce provisions for your client. Whether or not used in negotiation, any death provisions included in a prenuptial agreement require an understanding of complex federal tax issues, knowledge of state property law, and thoughtful drafting.

Waivers Applicable At Death

While the details vary from state to state, the law is generally protective of the surviving spouse of a decedent. Through the spouse's elective share, a surviving spouse is granted a certain amount (which, depending on the state, differs dramatically), either outright or via a life estate, of his or her deceased spouse's assets. In addition, some states still grant a surviving spouse dower, or a life estate in the decedent's real estate, which in some cases can be the estate's most valuable asset. The spouse's elective share, dower and the many other benefits and rights granted by law to widows and widowers should be addressed by way of waivers and other provisions in any prenuptial agreement. In the absence of such provisions, a party's well-thought-out estate plan can be nullified and the protections gained by signing a prenuptial agreement can disappear upon the death of one of the parties.

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