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Using a Prenuptial Agreement to Protect Your Children’s Inheritance


Many Americans remarry later in life, and a prenuptial agreement can be a critical tool for protecting the inheritance of any children you have from a first marriage. Many people think of prenuptial agreements as affecting only how property is divided upon divorce, and it’s true that most agreements are focused on what happens if a couple ultimately finds itself in divorce court. But prenuptial agreements can do so much more. In particular, it can protect assets from being taken by your current spouse when you die.

If you have a question about whether a prenuptial agreement is right for you, please contact a Media family law attorney today. A lawyer at Barbara Flum Stein & Associates will be pleased to meet with you.

Pennsylvania’s Elective Share

Our state has a public policy that a spouse should not be disinherited by a husband or wife. This policy is encapsulated in the “elective share” provision found at the Pennsylvania Code § 2203.

With an elective share, your spouse essentially can take one third of your assets or property, regardless of what is contained in your will. This elective share can frustrate the ability of a person to leave assets to their children.

Imagine you have 2 children from a first marriage who are now grown. You want to leave each one 40% of your estate and leave your current spouse only 20%. With the elective share provision, your spouse can take even more during probate, thus reducing the amount available to your children. And this is true even if you were married for only a short amount of time.

Some people avoid getting married because they don’t want to disrupt their current estate plan. But men and women have a powerful tool to get around the elective share provision.

How a Prenuptial Agreement Helps

Any person can essentially waive their right to the elective share, and you can include that waiver in a prenuptial agreement. Make sure to work with an attorney who can make sure that the agreement is airtight and will hold up to a legal challenge later. Also don’t spring the agreement on your fiancé days before the wedding. A judge will enforce a valid prenuptial agreement if it is drafted properly and no fraud or coercion was used to procure it.

Some people try to use other estate planning instruments to provide for their children—trusts, life insurance, inter vivos transfers, etc. But including a waiver of the elective share in a prenuptial agreement is often a simpler method of accomplishing many of your estate planning goals.

Speak with a Delaware County Family Law Attorney

Creating a blended family takes planning. Many legal issues can pop up after death, when it is too late for you to fix them. Fortunately, an experienced Media family attorney can help you think through these legal issues so that there are no surprises for your heirs.

Barbara Flum Stein & Associates has represented many people approaching a second or even third marriage. To schedule a meeting, please contact us today. We offer a free consultation.

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