Many, if not most people intend their spouse to be the primary beneficiary of their estate. But there are also many situations in which it makes sense to limit a spouse’s inheritance. Maybe you have family wealth or an interest in a family business that you want to remain in your family of origin if you should die. Perhaps you and your spouse are marrying later in life, and have each accumulated significant assets on your own. You might have children from a previous marriage that you would prefer to inherit your assets; a prenup can protect your child’s inheritance in the event that you predecease your spouse. Whatever your motivation, a prenuptial agreement can be a valuable estate planning tool.
If your first thought when you hear the word “prenup” is divorce, you’re not alone. But a prenuptial agreement is nothing more than agreement between a couple before their marriage as to how they will approach issues (usually financial) during their marriage. While a prenup does deal with how the couple’s property will be treated in a divorce, it can also address what will happen to assets if one spouse dies.
A common misconception is that a prenuptial agreement has no place in your estate plan if you have a will. After all, the purpose of a will is to leave your assets to the people you intend to have them. So, for example, if you want your adult children from your first marriage to inherit your estate, you could update your will to reflect that, right?
That statement is true as far as it goes. Unfortunately, it doesn’t take into account Ohio’s elective share law. In essence, under Ohio law, you cannot simply disinherit your spouse in your will. If you do, or even if your spouse is simply dissatisfied with what you have left them in your will, they can choose to “elect against the will.” Making an election means that your surviving spouse can choose to take either what they were left in the will or what they would have taken from your estate under Michigan law had you not had a will.
The elective share may include from one-third to one-half the value of your estate, depending on how many children you have. Simple math dictates that if your spouse gets more of your estate than you planned, your other heirs or beneficiaries will receive less. Not only is this not the outcome you intend regarding your assets, but it is likely to result in strife and damaged relationships within your family. A spouse who chooses to take their elective share does so within the context of a probate court proceeding, embroiling your heirs in litigation.
However, if you and your spouse executed a prenuptial agreement prior to your marriage, you may have agreed to a certain distribution of assets in the event one of you dies, including agreeing to forgo your right to an elective share of the estate. A prenuptial agreement does not replace your will; instead, it serves as a necessary supplement to the rest of your estate plan.
Agreeing to waive the elective share does not mean that a spouse will inherit nothing. You and your spouse can agree to a certain minimum inheritance in your prenuptial agreement. That way, your spouse can be assured that he or she will not be left destitute if you die, and you can be assured that your assets will be distributed just as you intend after your death.
In fact, using a prenuptial agreement to completely disinherit a spouse could backfire. A court may hesitate to uphold a prenuptial agreement which results in a spouse being completely disinherited; it is more likely to enforce an agreement in which one spouse agrees to limit their inheritance.
Prenuptial agreements, also known as “antenuptial agreements,” must be enforceable in order to effectively keep an inheritance from a spouse. In Ohio, the requirements for a prenuptial agreement to be valid and enforceable are that:
The terms of the prenuptial agreement must also not promote or encourage divorce.
The best way to make sure that your prenuptial agreement is enforceable is to ensure that it is not made too close in time to the wedding; otherwise, a court could conclude that one spouse felt pressured into making the agreement so that an impending wedding would not be called off. Both spouses should also be advised regarding the agreement by their own independent attorneys, in order to reduce the chances that one spouse will later allege that the agreement was unfair or that they did not understand what they were signing.
It’s important to remember that a prenuptial agreement should be a shield rather than a weapon. Its purpose is not to injure or punish your future spouse. Rather, your prenuptial agreement should be designed to protect. Not only does it protect your assets and your children, but it can protect your marriage; starting out with a clear understanding of each other’s financial situation and goals can prevent fighting that leads to divorce.
While prenuptial agreements can be an integral part of a comprehensive estate plan, there may be better options, depending on your particular goals. For example, an Ohio legacy trust may be a more effective way to protect your children’s inheritance or your family business. If you have questions about using a prenup to keep an inheritance from your spouse, or protect an inheritance for your children, contact an experienced estate planning attorney to schedule a consultation.