Prenups and Estate Planning Can Overlap
The way prenuptial agreements are used in marriages can result in them having a bit of an overlap at times with estate planning, because these contracts often limit a surviving spouse’s right to inherit property.
Every state has laws in place that protect a surviving spouse’s property and inheritance rights. These laws were originally implemented to protect a stay-at-home or non-earning spouse so they wouldn’t be put in a situation where they were left with nothing should the earning spouse pass away.
There are two approaches to these protections: common law and community property laws. Most states, including Florida, are “common law” states.
Benefits of prenups in common law property states
In common law states, a spouse has the right to inherit property from you upon your death. You cannot disinherit a spouse by leaving them little or nothing, or by expressly disinheriting them—common law rules mandate an “elective share” of the property for spouses, which is essentially a mandatory minimum percentage of the estate. Spouses who take the elective share will get that fraction of the estate, and may decrease the percentage of the estate that was reserved for other heirs.
However, with a prenuptial agreement you can override elective share rules if the agreement includes a waiver of the spouse’s right to the elective share of the property. This most often occurs if a person wants to make sure they pass on the vast majority of their wealth to children from a prior marriage. These agreements can also provide security to the surviving spouse against overreaching heirs of the deceased spouse’s estate.
If you’re interested in learning more about how prenuptial agreements can be beneficial tools for estate planning purposes, contact an experienced Tampa, FL attorney at BaumannKangas Estate Law with any questions you have for our team.