Attention All Soon to Be Mother-in-Laws
Attention All Soon to Be Father-in-Laws

I know the peak wedding season has already passed, so perhaps my message is late for some, but I know it is still timely for others. Perchance your son, or your daughter, is engaged and planning to wed. With any luck, you are pleased (or moderately so) with your child’s choice of a lifetime partner. If you are not, or even if you are, there is something that you should consider: whether your son or daughter ought to have a prenuptial agreement drawn up before he/she marches down the aisle. Hmm, you might be saying, shouldn’t this question be directed at the future groom or future bride? The answer, as with any answer by a lawyer, always begins with two words: It depends.

Take a moment to think ahead, hopefully far ahead, to when you have departed from this earthly plane. Your worldly goods aren’t going anywhere; as the adage puts it, you can’t take it with you. But you may have strong opinions about who should keep it.

I think I hear another hmmm. Clearly when anticipating a joyful union, one does not want to focus on anything more frightful than the bill. But death or divorce should be considered, particularly with families that have significant possessions to pass on to their children.

“Karen, would you please get to the point?” as Steven would say — actually, he would silently make a sweeping gesture with his arm, letting me know I need to keep moving, and pick up the pace.

A prenuptial agreement, executed by the married couple-to-be, may protect your estate from falling into the hands and/or control of your future (ex) son-or-daughter-in-law. Simply put, a prenuptial agreement, entered into voluntarily, with full financial disclosure to the parties to the agreement, may include language as to inheritances. And, inheritances (and gifts), so long as the assets are kept separate and not co-mingled with the marital estate, may potentially be excluded in case the newlyweds eventually find themselves in a less-than-blissful union. Proper language in a prenuptial agreement may keep an inheritance off the table and excluded from the marital estate. It may then not be subject to division in the event the parties divorce after your death.

The issue may arise as to whether a surviving spouse is entitled to an inheritance that is part of a deceased spouse’s estate. The inherited property may be excluded, if there is a valid agreement in place and the deceased spouse’s will does not contradict the prenuptial agreement.

A good estate plan, coupled with pre and postnuptial agreements executed by your children, can help ensure that your “family” assets are protected. However, as mentioned earlier, if co-mingled with the marital estate of the divorcing couple, all can be for naught. Good practices to avoid such pitfalls may include, for example, establishing a trust for large gifts such as a vacation home. What you are hoping to avoid is the couple using inheritances to pay for marital expenses such as vacations or their children’s education. Once that occurs, it may be difficult for your child to claim that the inheritance is not a marital asset subject to division upon divorce.

Please do not have the take away of this article be, oh dear, we screwed up. Breathe a sigh of relief. Massachusetts courts have recognized postnuptial agreements, so long as such agreements are entered voluntarily with full disclosure of each of the parties’ assets and liabilities.

So, returning to your initial question, “Shouldn’t the consideration of a prenup be directed to my child,” it depends… It depends upon the sophistication, age and worldliness of your offspring. Right after the cake-tasting may just be the moment to be that pushy parent!

Any questions? Of course! You know how to reach the Konowitz & Greenberg TEAM. We can help with prenuptial and postnuptial agreements as well as wills and trusts and estates.

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