Estate Planning vs. Prenuptial Agreement — Part 1


If you’re counting down the days to your wedding, divorce is probably the last thing you and your fiancé want to be thinking about, and yet you might be rightfully concerned about what would happen to your assets in the event of a divorce — or your death. You may also be worried that suggesting a prenuptial agreement could hurt your future spouse by making him or her feel as if you don’t trust them, thereby creating friction before the marriage even begins.

While such concerns are valid, you should know that prenups aren’t your only option for shielding your assets from these scenarios. With a well-designed estate plan, for example, you can structure your assets in such a way to keep what you have safe, provide for your future spouse in the event of your death, and also protect your assets in the event of a divorce. In this way, you can avoid having the prenup conversation altogether.

We do recommend talking with your future spouse about your assets, what would happen in the event of your death, and also making plans in advance so you can feel confident that any children from a prior marriage (or an expected inheritance) are well-planned for no matter what happens. In this two-part series, I’ll first discuss the pros and cons of prenuptial agreements, and then in part two, provide estate-planning alternatives you may want to consider.

Prenup Pros


Sets clear financial expectations


For many couples, not openly discussing money and the partnership’s financial expectations can lead to big problems down the road. In fact, money problems are one of the leading reasons that marriages end, right up there with infidelity. A well-counseled prenuptial agreement could be an opportunity to start your marriage with complete transparency and clearly establish the financial and property rights of each spouse should a divorce occur or in the event of the death of either spouse.

Helps protect your separate assets


If you have any tangible or intangible assets you are bringing into the marriage that you don’t want to risk losing, a prenuptial agreement can help shield that property from divorce proceedings or from a future “elective share” of a spouse upon your death. This can be vital if you have significant assets like a business, real estate, intellectual property, vehicles, or family heirlooms. And, if you know you’ll want to ensure your assets go to children from a prior marriage, a prenuptial agreement can protect those assets for your children.

Helps prevent a lengthy, contentious, and expensive divorce


Divorce is never fun and can often be both emotionally and financially painful, but putting a prenuptial agreement in place could make it less so. Clearly establishing the financial and property rights of each spouse when the relationship is at its most loving — and putting those parameters in a legally-binding document — can greatly reduce the chances of you two duking it out in court later if your marriage doesn’t work out. A long, expensive court battle is the last thing you need when dealing with the painful emotions and often-hefty legal fees associated with a divorce.

Helps prevent disputes over debt


Not everyone is equal in their ability to manage their money. As mentioned earlier, disagreements over finances are a frequent reason marriages fail. Therefore, it could be a good idea to use a prenup to identify who is responsible for taking care of specific debts and liabilities. You don’t want to be stuck paying for your ex-spouse’s credit card debt when you had nothing to do with racking it up.

Prenup Cons


It’s not exactly a romantic gesture


No matter how untrue this assumption may be, people often perceive creating a prenuptial agreement as expecting the marriage to fail or that it indicates a lack of trust. Such concerns should be respected and addressed as tactfully as possible. But the reality is marriage involves lots of issues that aren’t romantic, and dealing with such delicate matters upfront could bring the two of you closer (or expose hidden red flags), regardless of whether an agreement is actually created or not. Whatever you do, don’t wait to have the discussion until right before the ceremony. It’s not only extremely rude, but it could lead a court to invalidate an agreement put in place at the last minute as being created with undue pressure.

It might not be necessary


What a prenuptial agreement can cover depends on what kind of assets you have and where you live. Given this, existing divorce laws might already split your assets up in a way you think is fair. For example, in community-property states, the court will divide the property you and your spouse acquired during the marriage in an equal 50/50 split, while each spouse gets to keep his or her separate property. In Hawaii, a non-community property state, it is a little trickier. The court will divide the property as it deems to be fair — not necessarily equal.

It can’t resolve issues of child custody, support, or visitation


It’s important to note that prenups can’t address certain issues related to children and divorce. For example, though prenups can help ensure your children from a prior marriage are able to inherit assets you want to leave them, these agreements cannot be used to address child support, custody, or visitation rights. Those issues must be resolved by the court, so a prenup would be useless if that’s what you’re hoping to achieve.

It may require two lawyers to be valid


Prenuptial agreements may be invalidated if both parties are not represented by independent legal counsel. And depending on the lawyers you each work with, lawyers who are not well-experienced with counseling, care, and conflict resolution can inadvertently escalate or intensify conflicts, rather than supporting you and your future spouse to get on the same page.

Alternative options


If you plan ahead, certain estate planning vehicles can be used to protect your assets from divorce settlements and ensure that assets pass to your children from a prior marriage in the event of a divorce. There are different types of trusts, for instance, that can be set up to allow you to protect assets for yourself in the event of a divorce, and for your children in the event of your incapacity or death.

In fact, such planning vehicles may prove much more effective at protecting your assets and providing you with more control over how your assets are distributed than a prenup. In part two of this article, we’ll cover the various ways to use estate planning vehicles to proactively protect your assets, so you don’t need to have multiple attorneys or risk losing assets to a new spouse in the event of divorce or death.

This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That is why we offer a strategic planning session, during which you will get more financially organized than you have ever been before and make all the best choices for the people you love. You can begin by contacting our office today to schedule a planning session and mention this article to find out how to get this $750 session at no charge.

Disclaimer: Unfortunately, I am not your lawyer unless you have paid me for legal advice and we have a signed agreement. Therefore, all information on this website is for informational purposes only and is not legal advice. You should contact an attorney trained to work with families on estate planning matters regarding your specific situation. Use of and access to this website or any of the email links contained within the site do not create an attorney-client relationship between the Law Office of Keoni Souza, LLC, and any users or any other party.

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All information available on this website is for informational purposes only and is not legal advice. You should contact an attorney directly regarding your specific situation. The use of and access to this website or the transmission of information via email or through this website does not create an attorney-client relationship between the Law Office of Keoni Souza, LLC and any users or any other party. Transmission of information via email or through this website may not be secure, therefore confidentiality cannot be assumed.  By using this website or transmitting information via email or this website, the user agrees to this information being collected, stored, or transmitted to a third-party.

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