When you paint with a broad brush you can make assertions based on cookie cutter scenarios, and they may be applicable in many situations but there are always going to be exceptions. When it comes to marriage the base assumption probably needs to be adjusted to some extent. About 40% of marriages end in divorce, and approximately 75% of those who get divorced remarry. Over 60% of these people have children from different marriages. So when you think about estate planning you have to keep these facts in mind. A lot of couples are in their second and third marriages and many of them are not going to be in complete concurrence when deciding how their assets should be dispersed.
Of course we are all aware of the fact the premarital agreements are sometimes used to address the above, but there are cases when a pre-nup didn’t seem necessary at the time of the marriage. There are other instances when there is a premarital agreement in place but one or both of the parties in the marriage no longer feel as though it is adequate. And there are cases when a married couple who have never divorced don’t agree when they are planning their estate.
The solution to these types of situations can be a post nuptial agreement that delineates personal property along with two separate estate plans. Though to some this may seem unconventional and it is certainly not the norm, especially for couples who have never divorced, perhaps it should be more common. Just because you are married and love someone deeply doesn’t mean that you have to see eye-to-eye on every financial decision. If the husband feels passionately about leaving $500,000 to the football program at his alma mater, is his wife wrong if she objects? A very viable solution would be for the couple to enter into a post nuptial agreement that delineates personal property so that they both have the freedom to plan their legacies in the manner that they each sees fit.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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