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Prenuptial Agreements and Estate Planning Documents: Coordination Is Key

by Thomas E. Sliney

In today’s world it is very common for married couples to have prenuptial agreements. This is particularly true in Florida—the significant number of remarriages due to the loss of a spouse among Florida’s older residents and the high rate of divorce among all residents in the state make prenuptial agreements a natural choice.

The motivation is severalfold. One main motivator is to protect children from the first marriage, which can be done through proper documentation. Another key reason is to protect the assets of the people who are getting married. While no agreement is necessarily foolproof, a properly done prenuptial agreement executed with full disclosure, with independent counsel for each party, and with both parties free from duress or undue influence is likely to withstand any legal challenge. Generally speaking, a prenuptial agreement spells out the obligations of each party to the other. Also, it usually provides that the spouses are not prohibited from making additional gifts to each other.

Once an prenuptial agreement is executed, it is normally put away and seldom looked at unless there is a divorce or until one of the parties dies. When either event happens, the agreement is dusted off and the terms are examined again. If there is a divorce, the prenuptial agreement governs the rights of the parties.

This is true in a death situation as well. But what happens when there is a failure by one of the parties to implement the terms of the prenuptial agreement in the decedent’s last will or trust? The answer is quite often litigation to enforce the terms of the prenuptial agreement. Since the prenuptial agreement is a contract, the surviving party is forced to file a claim in the decedent’s estate to enforce the prenuptial agreement. If the decedent’s estate objects to the claim, the surviving spouse and the decedent’s estate can be involved in costly and protracted litigation.

To prevent the unfortunate circumstances of the surviving spouse having to litigate with the estate of his or her late spouse, it is vital that the spouses, while both are alive, draw estate planning documents that mirror the terms of the prenuptial agreement. Each spouse should provide the other with a true copy of his or her estate planning documents to make sure that the documents carry out the terms of the prenuptial agreement. In that way, costly and protracted litigation can likely be avoided after the death of one of the spouses.