Marriage is a happy occasion and for most, thinking about divorce or death when thinking about marriage is unpleasant. However, there are many reasons you may want to think about the possibility of divorce or your eventual death when you are getting married or have recently gotten married. Whether you have realized you need to protect the inheritances of children from a previous marriage or have inherited something yourself, it is not too late to take steps to do so once you are married. You can draft a postnuptial agreement that will not only protect you in the event of a divorce, but can also be part of your estate plan to protect you, your family, and your assets when you pass away. Postnuptial agreements and estate planning can integrate seamlessly to ensure everyone’s best interests are protected. If you require assistance with your postnuptial agreement or estate plan in Florida or Minnesota, contact Roulet Law Firm, P.A. to discuss your legal needs with one of our experienced attorneys. Call (941) 909-4644 in Florida or (763) 420-5087 in Minnesota to schedule your consultation.
What Is a Postnuptial Agreement?
Postnuptial agreements are contracts that are signed after a couple has married to outline how their financial assets will be owned if the couple divorces. The agreement may also outline spousal responsibilities. A postnuptial agreement can be drafted and signed at any time after the marriage, though if the couple files for divorce within two years of its creation, the court may invalidate the agreement. These agreements last the length of the marriage unless otherwise specified and can be useful for individuals with significant assets or businesses to protect those premarital assets. They can also be used to protect assets gained after the marriage, such as when one spouse learns they will receive an unexpected inheritance.
Are Postnuptial and Prenuptial Agreements the Same Thing?
Postnuptial and prenuptial agreements are the same thing when it comes to the primary goal of each document: protecting an individual’s assets and creating financial security for one or both spouses. Beyond that goal, however, they are two entirely different documents.
Prenuptial Agreement
According to Minnesota §519.11, couples may enter a prenuptial agreement, also referred to as an antenuptial agreement, as long as they are of legal age and the agreement is entered into prior to the marriage. Both parties must have time to read and consider the agreement, including the opportunity to consult with their own separate legal counsel, and the agreement must be signed no less than seven days prior to the marriage. The prenuptial agreement must be considered procedurally and substantively fair to both parties as well. A prenuptial agreement can only be amended or revoked by a valid postnuptial agreement drafted per Minnesota law.
Florida §61.079 is similar to Minnesota’s law. Couples can enter a premarital agreement that becomes valid upon the marriage taking place. Both parties must disclose fully all their assets and have the opportunity to consult with their own individual legal counsel. Florida also requires amending or revoking a premarital agreement by signing another written agreement, though it does not specifically call this new agreement a postnuptial agreement.
Postnuptial Agreement
Minnesota’s requirements for postnuptial agreements, found in the same statute, are essentially the same as those for prenuptial agreements, with the exception that they are entered into after the marriage rather than at least seven days prior to the marriage. A postnuptial agreement can only be amended or revoked by a newer agreement. Additionally, if the couple files for separation or divorce within two years of the date the agreement was signed, it may be unenforceable by the courts. Roulet Law Firm, P.A. has experienced estate planning attorneys who may be able to assist you in creating a valid postnuptial agreement for your estate plan.
Florida does not have a law specifically addressing a postnuptial agreement. However, the law regarding prenuptial agreements indicates that a premarital agreement can be abandoned, revoked, or amended by a new written agreement which is enforceable. Additionally, Florida §732.702 addresses the waiver of spousal rights to a deceased spouse’s estate by indicating that a spouse can waive these rights with a written agreement executed either before or after marriage.
How Do Postnuptial Agreements Factor Into Estate Planning?
People often think of postnuptial agreements solely in conjunction with marriage and divorce. They think individuals sign these agreements after getting married to plan for the possibility of divorce. While some couples may do exactly that, some sign such agreements as part of their estate planning process.There are multiple ways that a postnuptial agreement can benefit an estate plan.
Limits Rights in Decedent’s Estate
One of the most obvious ways that a postnuptial agreement factors into estate planning is that it allows the couple to limit one or both spouses’ rights in the other’s estate after death. Both Florida and Minnesota laws allow the couple to waive their rights to the other’s estate, or to specify their own limitations on what each spouse is entitled to in the event of the other spouse’s death.
Creates Clarity and Certainty for Divorces or Remarriages
In 2021, the divorce rate in Florida was 3.4 divorces per every 1,000 marriages, according to the National Center for Health Statistics. Minnesota’s divorce rate was 6.1 per 1,000 marriages, per the United States Census Bureau. This not only indicates that there are many marriages ending in divorce but that many marriages are second or subsequent marriages. When someone remarries, they are even more aware of the possibility of divorce and if they have children from their previous marriage, they may want to take extra precautions to ensure their children’s inheritance is protected if the new marriage does not work out.
A postnuptial agreement allows couples to create clarity and certainty in the event they divorce or when one of the spouses dies. They can use the agreement to stipulate which assets are intended for their children, to identify specific assets as premarital, or to indicate that particular assets gained during the marriage that might otherwise be marital property will be treated as separate property.
Determines Ownership of Property
There are countless stories of people dying and their relatives, from adult children to parents to distant relatives, claiming property as the decedent’s when it is not. In some cases, this is a simple misunderstanding: an adult child who does not realize that their parent’s widowed spouse owned the home before the couple met, for example. In other cases, it may be a deliberate attempt to get an asset that is not rightfully theirs.
A postnuptial agreement can avoid this by spelling out ownership of assets that heirs may fight over. For example, it can stipulate that one spouse owned the home prior to the marriage or that the spouse who did not own the home will get to continue living in it after the other spouse’s death.
Limits Individuals Contesting the Will
A postnuptial agreement does not replace a Last Will and Testament. What it can do is provide supporting evidence as to the testator’s intentions with their will. The most common reasons for contesting a will are the testator lacking capacity, duress, undue influence, and fraud or forgery.
When a postnuptial agreement confirms the asset distribution written in the will, it is more difficult for individuals to contest the will. The agreement, often written at a different time than the will, indicates that the testator was in their right mind and knew precisely what they intended.
More Efficient Asset Distribution
Along the same lines as defining ownership and limiting contesting the will, a postnuptial agreement can allow for more efficient asset distribution. When the agreement outlines who owns specific assets, and who those assets are intended to go to, it backs up the will and allows the estate’s personal representative to move more quickly with distributing those assets in accordance with state laws.
Complements Revocable Trust to Protect Assets
By clarifying ownership of assets in a postnuptial agreement, and then placing those assets in a revocable trust, individuals can feel comfortable knowing that those assets are protected. A revocable trust allows the grantor to make changes later, such as adding or removing beneficiaries. This also allows the individual to protect their privacy, as both trusts and postnuptial agreements are not public record. This also ensures that these assets are protected in the event of a divorce.
Waives Benefits to Federal Pensions or Retirement Plans
Many federal pensions or retirement plans offered by employers offer benefits to the recipient’s spouse in the event the recipient dies. If the pension or retirement plan is subject to the Employee Retirement Income Security Act of 1974 (ERISA) or Retirement Equity Act of 1984 (REA), a Minnesota or Florida postnuptial agreement in which the spouse waives their rights to the pension or retirement plan is sufficient to waive their rights.
Specify Inheritance Rights
Postnuptial agreements can be one of the essential estate planning documents for newlyweds when one of the spouses receives an unexpected inheritance or otherwise comes into a large amount of money. A postnuptial agreement can not only spell out that only one spouse inherited or came into the money but also indicate who they want that money or other particular assets to go to when they die. This can ensure that the assets are not given to the other spouse in a divorce and eliminate any other claim on those assets when the individual dies.
How To Incorporate a Postnuptial Agreement Into Your Estate Plan
Incorporating a postnuptial agreement into an estate plan does not have to be difficult, but it does have be valid and legally enforceable according to Florida or Minnesota law. Individuals should remember that this agreement is not meant to be a replacement for a will or trust. Instead, it should be used as supporting evidence to clarify the intentions of the parties regarding asset distribution when one of the spouses dies.
Individuals should also ensure that all estate planning documents are in alignment. In other words, they should make sure their postnuptial agreement, will, and trust documents all say the same things regarding asset ownership and distribution. If the postnuptial agreement promises an asset to an adult child and the will promises the same asset to the spouse or a different adult child, this may create delays as the court tries to determine the validity of each document and which one should be used. This can also cause all other distributions to be questioned. A postnuptial agreement can be used to disinherit a spouse in both Florida and Minnesota, but it is always important to review the agreement and revise the estate plan as needed during or after a separation or divorce.
Ask An Estate Planning Attorney How They Can Assist You with a Postnuptial Agreement
While it may surprise you to learn that you can include a postnuptial agreement as part of your estate plan, they are becoming a common component. Whether you have recently married or have been married for years, a postnuptial agreement can protect spouses and heirs in the event of divorce as well as when you die. If you need assistance with postnuptial agreements and estate planning, our experienced Florida and Minnesota attorneys may be able to assist you. Call Roulet Law Firm, P.A. at (941) 909-4644 in Florida or (763) 420-5087 in Minnesota for a free consultation to discuss your legal needs.
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