If you have a prenuptial agreement, chances are that the family law attorney who represented you betrayed you and didn’t even realize it.
I often tell clients to get a prenup if they are getting married later in life, and insist my older clients pay for their child’s prenup. And soon thereafter, much to my dismay, I see yet another prenup that unintentionally-yet-completely screws my client if his or her spouse dies unexpectedly.
Prenups serve one vital purpose: “Split Money.” There is usually a financial disparity between the parties when the couple marries, so the wealthier spouse naturally wants to protect his or her money from the other spouse’s financial grasp after a short marriage. So the prenup says who gets what if the marriage ends quickly. This makes sense since many marriages fail within 5 years, often leaving the couple with somewhat different financial circumstances than when they entered.
But what if a spouse dies unexpectedly, especially early in the marriage? Many family law attorneys automatically enter a second non-necessary aspect into the prenup regarding “Death Money” that denies the surviving spouse any of his or her spouse’s property without a Will (under “Intestacy”), an automatic spousal right to 1/3 of the deceased-spouse’s property (the “Right of Election”), and even minor-yet-important property such as the deceased spouse’s car, personal property, or small sums of cash in a bank account (known as “Exempt Property”). Basically, your matrimonial attorney just ensured you get nothing if you are in a happy marriage but unexpectedly and tragically lose your spouse.
Many family law attorneys insist a prenup must deal with both Split Money and post-mortem property. They claim that all that needs to be done is add a statement to the prenup ensuring an unexpected death will not invalidated the remaining spouse’s estate rights, or that they can include a clause stating the couple may draft a Will or Trust to supersede the prenup. And my response is “Be real guys: You rarely include an unexpected death clause in your prenups, and almost never tell your clients to draft a Will or change beneficiary forms after you get paid your retainer.”
Let’s face facts: A family law attorney is there to protect you if your spouse chooses to leave you, whereas an estate attorney is there to assist you if the unexpected occurs; one should not try to fill the other person’s role. By the time a loving couple has finished the decidedly-unromantic and taxing discussions regarding a prenup they usually have no strength left to update a Will or beneficiary forms until they have a child. Unexpected death can happen at any time, and now the prenup denies the breathed spouse of all the deceased spouse’s property. Do yourself a favor and educate your family law attorney to not automatically add a Death Money clause in your prenup.
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