Southwest Florida's Health and Wellness Magazine Health and Wellness Articles
By Steven J. Gibbs, Esq.
When most people think about getting a prenup, they immediately visualize the stereotypical rich older dude marrying a young babe. So, today’s topic is in honor of men’s health month here at Health & Wellness.
The pre-nup (“prenuptial agreement”), as well as its alter ego the post-nup (“postnuptial agreement”) are actually very important documents for estate planning. Both variations of the nuptial agreement involve similar rules and concerns.
The key to any nuptial agreement for estate planning purposes is finding a way to preserve “non-marital” assets for other non-spousal beneficiaries, such as adult children from a prior marriage. This is accomplished by a contract that keeps the happy couples’ respective assets separate. This allows the couple, in turn, and NOT the default state laws to decide how to distribute the assets between the spouses as well as other beneficiaries.
Prenuptial Agreements – Divorce vs. Death Distributions
When referring to distributions between spouses, remember that we are talking about the two very different circumstances of divorce and death of a spouse.
Prenuptial Agreements and a Spouse’s Death in Florida
Nuptial agreements offer what may be an essential protection where there is a second marriage AND children from a previous marriage. There are certain legal rights upon death that directly relate to the legal contract of civil marriage and these rights can only be waived by an enforceable agreement known as a prenuptial or postnuptial agreement.
The Difficulty of Disinheriting a Spouse in Florida
In certain states such as Florida, a spouse cannot be disinherited and thus the only way to legally enforce not giving anything to a surviving spouse is by a nuptial agreement.
A spouse in Florida who isn’t happy with the deceased spouse’s estate plan may opt for his/her elective share rights, thereby setting aside the deceased spouse’s estate plan. If this happens, the spouse may be granted a portion of the estate regardless of the agreement or the parties as written in the estate documents.
In Florida, the homestead laws also protect the surviving spouse and prevent the deceased spouse from giving the marital home to the third party, even if the surviving spouse was not on the title.
Prenuptial Agreements and Divorce in Florida
Upon divorce, rather than the spousal waiver of homestead or elective share rights, the courts will be more concerned about alimony and waiver of spousal rights to property accrued during the marriage.
A solid prenuptial agreement will provide a working definition of what constitutes marital property if property was acquired during the marriage. For example, if property was acquired with one of the spouse’s non-marital accounts (separate property) then perhaps it will be deemed non-marital and the divorcing spouse may NOT claim it. The prenup may also provide a complete waiver of alimony, and thus even if one spouse is much more wealthy, the would not be entitled to this kind of spousal support.
Note, child support is NOT subject to waiver in a prenuptial agreement because it is intended to benefit and care of the children and NOT spouses.
Enforcing Prenuptial Agreements in Florida
Prenuptial and postnuptial agreements in Florida must be drafted and signed properly in order to be enforceable.
Due to the fact that the spouses’ respective property rights have been modified by this prenuptial agreement, the next question becomes whether it is enforceable. This question becomes especially important when one of the spouses challenges the agreement.
Clear Waivers
A well drafted nuptial agreement will include easy to understand waivers concerning the various rights noted above. By well drafted, I mean that a waiver of elective share rights and a homestead waiver should be specified in the agreement AND not buried in the boilerplate. By specified, I mean conspicuously stated with headings and with sections separately initialed by both the spouses.
Financial Statements and Full Disclosure
It is also very important that a financial statement of some kind be attached to the agreement for both spouses. The financial statement should include all assets at the time of the agreement and should also include an ERISA waiver for financial retirement accounts. I also recommend that the agreement acknowledge the fact that the financial circumstances may change dramatically during the course of the marriage and that each party understands and accepts this fact.
Helpful Tip! Prenuptial agreements (signed prior to marriage) are easier to enforce, in my opinion, than postnuptial agreements (signed after marriage) because the implication is that the prenup was a precondition and consideration for the marriage. Also, it is very important to allow a waiting period before the marriage to allow time to process and review the prenuptial agreement. For this reason, prenups signed at the alter would be considered highly suspicious and arguably non-enforceable.
A fair question may be whether another less formal agreement would work for one spouse to waiver his/her rights upon death. The short answer is that the well drafted prenuptial or postnuptial agreement is most effective because of the full disclosure and formalities that characterize it and thus make it enforceable.
Another fair question is to ask whether any of this prevents one spouse from giving gifts to another either during lifetime OR upon death. The answer is nothing prevents such gifts; HOWEVER, the prenuptial should specify steps to take to make sure that such gifts are upheld.
Sincerely,
Steven Gibbs
Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney. If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client. Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law. It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.
Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was recently admitted to the California bar. Keeping abreast of law changes in these three States, as well as the United States, assists him in all aspects of the types of law the firm practices.
Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues. Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills. He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children. The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.
Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path. To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”
