Marriage and Divorce in the Context of Estate Plans – Frequently Asked Questions

What is a Prenup?

A prenup is the short name for a prenuptial agreement, sometimes called an ante nuptial agreement, by which two people make an agreement prior to marriage regarding how they will divide their assets if they divorce.

Each party should be represented by their own estate planning or family law lawyer.  Each party should be prepared to provide their future spouse with a list of their assets.

What is a Postnup?

A postnup is the short name for a postnuptial agreement, also called a spousal or marital property agreement, by which a married couple makes an agreement regarding how they will divide their assets if they divorce.  The agreement may also or instead simply convert some or all of their community property to separate property of one of the spouses.

A well-known example is the postnup of Frank and Jamie McCourt, which was intended to describe which property was owned together and which was owned separately.  Disputes and litigation were fueled because some versions of the the agreement contained language that the Dodgers were “inclusive” of Frank’s separate property, and others stated that the Dodgers were “exclusive” of his separate property, which would mean they were co-owned with Jamie.

How Does a Divorce Affect My Estate Plan?

If you are contemplating a divorce, even before a petition for marital dissolution is filed, you may want to amend or create an estate plan so that someone other than your soon-to-be-ex spouse has the power to make healthcare decisions for you, to manage your finances if you are incapacitated, and to manage money you leave to your children.

If a marital dissolution petition has already been filed, you will want to change your DPAHC, HIPPA release, and selection of guardian for your children.  Changes to your will and trust would be made in consultation with your divorce attorney to promote consistency with any stays affecting assets and your goals in the proceeding.

After the judgment of dissolution, you are free to change everything so long as not inconsistent with any settlement agreement or judgment.  Those restrictions may affect, for instance, certain retirement accounts or the sale of the family house after the children are grown.

If you do not change your estate plan upon divorce, undesired consequences arise, such as the battle between Mary Richardson Kennedy’s family and her ex-spouse Robert Kennedy Jr. over where she would be buried.