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Marital Agreements and Estate Planning... How They Intersect

More and more people are entering into marital agreements, both before (prenuptial) and after (postnuptial) marriage vows are taken. Marital agreements are contracts between parties controlling how property is distributed upon divorce or death.

With a marital agreement in place, when divorced, each party typically leaves the marriage with the assets they brought to the marriage, as well as those they earned or received separately during the marriage. In the case of  death, the deceased spouse’s beneficiaries typically receive the deceased spouse’s assets. Even with a marital agreement in place, however, the parties can leave their assets to whomever they choose at death (including the surviving spouse) through beneficiary designations, joint ownership, testamentary gifts, or by naming the spouse as beneficiary of a trust.

Without a marital agreement, a divorcing spouse has the right to claim a share of all marital assets, which includes assets owned by both spouses. If one spouse dies, the surviving spouse is entitled to all of the deceased spouse’s estate, unless the deceased spouse has children from a prior relationship, in which case the surviving spouse is entitled to 50%. And even if the deceased spouse doesn’t want to leave anything to the surviving spouse, and attempts to disclaim the surviving spouse by naming other persons as account/policy beneficiaries or by writing a last will or trust naming other beneficiaries, the law still entitles the surviving spouse to an elective share of 30% of the deceased spouse's estate.

I admit this can be complicated, but here’s the "long and short” of it… If you want to guarantee how much your spouse and/or children receive at your death, a marital agreement and estate planning documents such as a last will or trust can be highly effective tools. If I can help you or someone you know gain peace of mind about the future of your family, please contact me at (813) 244-7758 or


Ross Spano   

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