Ramifications Of Setting up your Prenuptial Agreement The Wrong Way
If you have children, a prenuptial agreement must address the issue of inheritance. If you have children and you want your children to inherit from you instead of your new bride or groom, a prenuptial agreement should contain a waiver of the right of election by your spouse. An experienced matrimonial lawyer will know that if, after a marriage, a spouse dies, absent a waiver of the right of election, your spouse will be entitled to one third of your estate, or in the absence of a Will, your spouse will inherit all of your estate. So if you are the monied spouse, you may want to ensure that your children inherit from you, rather than your new spouse.
In addition, the spouse coming into the marriage with more assets may want to protect them in the event of a divorce. Similarly if you’re the spouse with less assets, you don’t want to give away things that you would otherwise be entitled to under the laws of New York State. Unless you find a lawyer that actually knows the law, you’re just signing a boilerplate agreement, which may give you the exact opposite of what you really need or want.
I’ll give you just one example, but it’s a real life story. A former client of mine got married and had millions of dollars in assets, which were his separate property. The parties signed a “boilerplate” prenuptial agreement, but the lawyer did not have the signatures notarized, making the prenuptial agreement invalid and unenforceable. My client discovered this twenty years later, when he and his wife decided to get divorced. The moral of the story is to do it right the first time so you do not get any surprises if one day your marriage ends in a divorce.