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Written by Kevin G. Henry and R. Douglas Martin.

We have all seen a TV show or movie in which the domestic relations lawyer tells his client who is getting married, “Prenup, baby, prenup.” The common perception is that prenuptial (also known as premarital) agreements only deal with possible divorce before the marriage has occurred. In fact, prenuptial agreements need not even address divorce at all. In a second marriage situation, a prenuptial or post-nuptial agreement is critical to protecting the intended inheritance of a child from a previous marriage. Often this is a subject about which second-marriage couples can easily agree, but their understanding must be properly worded and put in writing. Without a signed agreement, a surviving spouse’s legal representative could later renounce or elect against the will of a deceased spouse and take cash out of the estate using the surviving spouse’s statutory allowance. Alternatively, if the first spouse dies without a will, a surviving spouse’s legal representative could elect the spouse’s statutory one-half share of the decedent’s estate, even though the spouses had verbally agreed not to do this. This can have very serious financial consequences for children of the first marriage

 

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