My fiancé and I agreed to sign a pre-nuptial agreement before our upcoming wedding. I have nothing to protect. He has some family money and will inherit more someday. I don’t have a problem signing and agree it should all be his if we get divorced. I didn’t plan to hire a lawyer.
Then a friend asked me what happens if he dies. I assume I would inherit his assets if he dies before we have children and that I would share with the children if he dies after we have them. But, I figured I should ask you this question before I sign the agreement. Do I have anything to worry about?
You have a lot to worry about and should discard the concept that you can negotiate this on your own. You are fortunate to have a friend who is asking some questions. You need to hire an experienced family law attorney to represent you in this negotiation. If you don’t have the money to pay, ask your fiancé to pay, as he wants you to give up significant rights. Do this without delay as most lawyers will not represent you unless the wedding date is at least two months away.
Until recently, many lawyers took the position that it was not necessary to include “on death” provisions in pre-nuptial agreements and instead advised people they should create an estate plan after the wedding. That has never been my advice and a recent case confirmed my thinking.
While pre-nuptial agreements define what happens to assets in the event of a divorce, they can also provide at least minimum protections in the event of an untimely death of either party. Most people don’t want to think about their demise. Couples do not generally get married and make appointments with their estate planner for the next day or even the next year. The risk comes in to play if a pre-nuptial agreement defines all of your fiance’s property as his separate property and is silent on death provisions. The case law now says if defined as his separate property in a pre-nuptial agreement, his property would go to his estate and not to you, regardless of the fact you are married, because you agreed what was his stayed his as if you never married.
I always advise people to negotiate for on-death provisions assuming there is no divorce pending at the time of death. The agreement should be more generous upon death than it would be in the event of a divorce. What if his family money is used to buy a nice home that you live in — if he dies where will you live? What if you have children and stop working? Ask your lawyer to help navigate what is fair in your circumstances.