Many people I meet with have a negative view of pre-nuptial agreements. They feel that their future spouse will perceive the agreement as greedy, or un-loving. However, not having an agreement and just letting the chips fall where they may upon death or divorce, might prove to be far worse than asking someone to sign a legal document before marrying. There are many situations in which having a pre-nuptial agreement can save heartache and confusion for both the parties involved, as well as family they may leave behind after their death. That’s because pre-nuptial agreements have a place in both planning for marriage and planning for your estate. I’ll explain how:
A typical pre-nuptial agreement will cover what will happen and how property will be divided if the marriage does not last and the spouses find themselves seeking a divorce. Such an agreement can be very flexible and can cover many things including whether spousal support will be paid at divorce, who will get which property and even who has a right to income earned during the marriage. But a thorough pre-nuptial agreement also addresses whether a surviving spouse will have any interest in the deceased’s spouse’s estate at death, and if so, how much.
Pre-nups, as they are sometimes called, can be important anytime two people who are getting married want to set out clearly and in writing what their financial rights and responsibilities to each other are to be after the marriage and upon the death of one spouse. Even if the marriage is a first marriage there may be reasons for wanting to make the division of property clear. Under Tennessee law, any property or income acquired during the marriage becomes marital property which can be potentially divided by a divorce court – it may not matter which party earned it or which party contributed it to the marriage or even why. So if you have decided before marrying that property should be held separately by each spouse, a pre-nuptial agreement will be required in order to do this.
Under Tennessee law, a spouse who is left out of a Will has a right to take what is known as an Elective Share of a deceased’s estate. The amount the surviving spouse can claim may range from 10% to 40% depending on the length of the marriage, but in the absence of a pre-nuptial agreement there is nothing preventing the surviving spouse from electing to take this share even if the spouse is intentionally not mentioned in a Will.
You should consider a pre-nuptial agreement as a way of being up-front and honest with a future spouse. These kinds of financial discussions, as any therapist will tell you, are essential to a healthy relationship. The requirements of pre-nuptial agreements are very specific and you should consult your attorney if you think that you should have one before taking the plunge. Call us and we can help you with this important legal matter.