Prenuptial Agreement / Death & Estate Planning
Anyone smart enough / organized enough to establish a Prenuptial Agreement, will also want to both include provisions addressing what will happen in the case of either or both parties in the Prenuptial Agreement and in Estate Planning documents. In the case of a couple getting married without any children from a prior marriage, quite often, if one party dies, everything goes to the other spouse, just as would be the case without a Prenuptial Agreement. However, frequently, the parties have their separate property going to their parents or siblings and, as required by law, the community property goes to the surviving spouse. On the other hand, if there are children from a prior marriage, in almost all cases of a Prenuptial Agreement, the separate property is held for or distributed to or for the benefit of those children. Very important in these cases is the disposition of any real property that may have been used as the couples joint residence. Since minor children might also need to use that residence, these provisions need to be thought through carefully before getting into a Prenuptial Agreement.
Similarly, within a reasonable time after the marriage, a complete Estate Plan, including a trust, wills, and powers of attorney needs to be established so that probate at death or a conservatorship in the event of the incompetence of either party (and all the costs, delays and mountains of paperwork involved therein), may be avoided.
Craig J. Bauman, Attorney at Law (858) 488-1497