Use of Pre and Post-Marital Agreements to Protect Assets
Pre and post-marital agreements are important tools for Florida asset protection. A premarital agreement (also known as a prenuptial agreement or prenup) is a legal agreement made by prospective spouses that sets forth each party’s responsibilities and rights during marriage, in the event of divorce, and at death. The difference between a pre and post-marital agreement is when they are signed. A premarital agreement is entered into before marriage. A post-marital agreement is entered into after you are married. Such agreements can minimize any concerns about how assets will be distributed and allow for a certain peace of mind going forward.
There are various benefits to entering into a pre or post-marital agreement in Naples, Florida. One of the biggest benefits is asset protection.
How Do Pre and Post-Marital Agreement Protect Assets at Death?
Many people assume that these agreements are only relevant to divorce, but that is incorrect.
In Naples, pre and post-marital agreements can also serve to protect assets at the spouse’s death.
Asset protection through such agreements is especially relevant to individuals in a second marriage with children from a previous marriage. Either agreement can preserve inheritances and protect the financial well-being of children from a previous marriage. It can help ensure that your children from outside the marriage will receive their inheritance by arranging the waiving of certain statutory rights for surviving spouses, like the elective share and homestead allowance. Under Florida law, spousal rights can only be waived by valid written agreement and without such agreement, spousal rights will be applicable in spite of the decedent’s will.
• Elective Share
In Naples, a surviving spouse has certain legal rights, including an elective share. The elective share law allows a surviving spouse to claim an “elective” portion of the estate rather than accepting what is provided in the will or trust. In Florida, the elective share is thirty percent of the deceased spouse’s assets. Even assets that are in a trust are not protected from the elective share.
If you wish to disinherit or leave less than thirty percent of your estate to your surviving spouse, entering into a pre or post-marital agreement is critical. The spousal share can be waived by an enforceable pre or post-marital agreement.
• Homestead Allowance
Additionally, a surviving spouse in Naples has the right to continue to reside in the homestead property for the rest of their life or force the sale of the homestead and collect one-half of the sale proceeds if it sold within six months of the death. The homestead property is the marital home.
Like the elective share, the homestead allowance can be waived in a pre or post-marital agreement. If you plan to leave your marital home to anyone besides your spouse, it is essential to create a pre or post-marital agreement.
How Does a Premarital or Post-Marital Agreement Protect Assets at Divorce?
No one enters a marriage expecting to get a divorce. However, it can sometimes become an unexpected reality. A pre or post-marital agreement can serve to protect and secure your assets for future unknowns.
When a married couple gets divorced in Florida, the court will divide marital property. Separate property remains free from division. In general, all assets acquired during the marriage are considered marital property and subject to division. The separate property though can be transformed into marital property if it is mixed or commingled with marital assets.
However, through a pre or post-marital agreement, the couple can decide how they will divide their assets at divorce. It can define what property is marital and what property should remain separate. You can protect your assets from division during a divorce. If you own a business, have children outside your marriage, or get married later in life, a premarital or post-marital agreement is essential to protect your assets during a divorce.
Do You Need an Attorney to Create a Pre or Post-Marital Agreement?
It is always best practice to have the help of an experienced estate planning attorney when drafting a pre or post-marital agreement in Naples. There are specific requirements that must be met, or the agreement will not be enforceable. If you work with a qualified attorney, you can rest assured that your agreement is valid and comprehensive.
Call A Naples Lawyer about Pre or Post-Marital Agreements
If you have questions about pre and post-marital agreements, you should contact an experienced Naples estate planning attorney. Contact our offices today at (239) 449-6150 or use our web form to set up a free consultation.