Prenuptial Agreements and Estate Planning
By: Dianna Gould-Saltman

            Prenuptial agreements fall into that category of document for family law attorneys which most resembles the work of estate-planning attorneys.  The document is created in advance of “need” and sets out the intentions of the parties to guide future conduct, rights and responsibilities.   Estate-planning documents and prenuptial agreements have the possibility of impacting the taxes of the parties and should be guided with tax effects in mind.  This is why it’s important for estate-planners, family law attorneys and tax attorneys and accountants to understand the work of the others sufficiently  to avoid frustrating the work of the others for their mutual clients.

            Estate planning documents such as wills and trusts, often address the intentions of individuals while impacting others, such as beneficiaries.  The intentions of a single individual direct the document, although people sometimes create “mutual wills” to align their intentions for the benefit of their beneficiaries.  Prenuptial agreements, by definition, must reflect the mutual intentions of both parties.  The document may contain compromise terms, but ultimately should reflect an agreement of two people, not the intentions of one.

            Parties to a prenuptial agreement may have estate plans in place before the prenuptial agreement is drafted.  This is often the case when the prenuptial agreement is being created to address the needs and interests of children from prior marriages. When those estate plans are re-written, as they should be after the marriage has taken place, the new version should contain terms consistent with the prenuptial agreement, or at least not inconsistent with it, out of concern for creating ambiguity after the death of the first of the parties. Likewise, tax implications which can be anticipated upon marriage must be accounted for in the prenuptial agreement, and, as the marriage may impact estate taxes as well, should be taken into account in the revised estate plan. 

            Prenuptial agreements are an area requiring significant skill and cooperation between professionals in different fields.  They also provide an opportunity for different professionals to get to know those who practice in the other fields for future consultation and referral.