Love always seems to be in the air during the month of April. The weather is warmer, the flowers are blooming, and the birds are chirping. Many people will be thinking about their romantic future this month and perhaps several will even get engaged. The act of marriage can be a beautiful and spiritual process, but it is also an act that carries tremendous legal significance.
Good marriage and legal advice can come from the strangest places. You may not think of Kanye West as a wise legal advisor, but in Gold Digger he offers some advice about an important legal document:
If you ain’t no punk holla we want prenup
WE WANT PRENUP! Yeah
It’s something that you need to have
‘Cause when she leave [you] she gonna leave with half
If you decide to start the discussion of a prenuptial agreement with a prospective spouse, I do not recommend that you holla, “We want prenup!” There are more constructive ways to begin a discussion about this important document.
A prenuptial agreement of course addresses the disposition of assets in the event of a divorce. However, no one enters into a marriage assuming they will eventually divorce. I recommend that divorce should therefore not be the primary focus of the prenuptial agreement, but rather use any such agreement as an opportunity to ensure that your estate plan is protected in the event of untimely death.
The act of marriage conveys certain estate rights upon a new spouse. For example, if I am single and leave my retirement plan to my two children, and then subsequently marry a new wife, my wife would take my retirement plan even though my children are named as the beneficiaries. Furthermore, my wife could take up to one-third of my estate as her marital elective share. If my estate plan is to leave everything to my children, even after my second marriage, then my spouse could seriously disrupt that plan. All of these spousal rights can be waived in a prenuptial agreement.
Prenuptial and post-nuptial agreements do receive a bad rap (pun intended) and can be quite emotional. However, they can certainly protect your children and are a vital part of any estate plan for a blended family. If a couple enters into the discussion thinking about how a prenuptial agreement can be mutually beneficial for their families, it will make the discussion much easier (and may actually be considered an act of love).