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Prenuptial agreements can be an estate planning tool

submitted by E. Garrett Gummer, III, Esquire – www.GummerElderLaw.com

As more and more people marry more than once, prenuptial agreements have become an important estate-planning tool. Without a prenuptial agreement, your new spouse may be able to invalidate your existing estate plan.

A prenuptial agreement can be used in a second marriage when both parties have children. For example, suppose you get remarried and both you and your spouse have children from a prior marriage. You want your house to pass to your children, but without proper planning and an agreement in place, your spouse could inherit the house and then pass the house to her children when she dies.

It is important to make sure your prenuptial agreement is valid. Following are the major factors needed to ensure this:

  • In writing. To be valid, a prenuptial agreement must be in writing and signed by both spouses.
  • No pressure. A prenuptial agreement will be invalid if one spouse is pressured into signing it by the other spouse.
  • Reading. Both spouses must read and understand the agreement. If a stack of papers is put in front of one spouse and he or she is asked to sign quickly without reading, the agreement can be invalidated.
  • Truthful. Both spouses must fully disclose assets and liabilities. If either spouse lies or omits information about his or her finances, the agreement can be invalidated.
  • No invalid provisions. If an agreement contains an invalid provision, the court can either throw out the entire agreement or strike the invalid provision. Similarly, if the terms of the agreement are grossly unfair to one spouse, the agreement may be invalid.
  • Independent counsel. While it is not required, it is recommended for spouses to seek advice from separate attorneys before signing a prenuptial agreement.

To find out if a pre- or post-nuptial agreement is right for you, contact your elder law attorney.

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