Manhattan Beach Lawyers for Prenuptial Agreement Inheritance Rights
Thinking about ending a marriage is never pleasant, and creating a prenuptial agreement makes that happen even before the marriage begins. The prenuptial agreement (sometimes called a “prenup” or an “antenuptial”) asks parties to consider how they want their property to be divided up in the event their marriage does not survive and ends in a divorce.
However, another thing for parties to consider is how they want their property to be divided in the event their marriage does survive, and it ends the other way marriages can end: in death. The Manhattan Beach prenuptial agreement attorneys at the Law Offices of Baden V. Mansfield understand that this is a complicated and sensitive topic and will handle your case with the attention and discretion it deserves.
Marital Inheritance Rights
In the absence of any will or trust, marital inheritance rights in California are both straightforward and complicated. As a community property state, the marital property vests equally in both spouses at the time of death, and the surviving spouse is entitled to the decedent’s entire estate unless there are also children and grandchildren. If there are children and grandchildren, but no will, things become increasingly complicated.
In California, it is difficult to deliberately disinherit a spouse. Under community property laws, the surviving spouse has a right to an “elective” share of the community property even if specifically removed from the will. The reasons for this are complex and won’t be covered here. What can be said is that for purposes of a prenuptial agreement, these facts become important.
Prenuptial Agreements and Waivers of Rights
The primary purpose of prenuptial agreements, in general, are waivers of various rights. The ones important for inheritance rights are waivers of community property rights and “spouse’s elective share.”
- Community property rights. When spouses agree that the parties waive community property rights, they are agreeing that all property acquired during the marriage remains the separate property of the spouse that acquired it. This means that if there is no will, the surviving spouse would not be able to claim the other party’s assets as community property.
- Elective share waiver. If there is a will, the surviving spouse has the right to claim one-half of the community property regardless of what other property they have been granted. Should the parties waive this right, they would not have the option to claim this share.
The outcome of these two waivers combined would be to disinherit the surviving spouse by preventing them from claiming any property with or without a will.
Reasons for Waiving Inheritance Rights
There are many reasons for creating such a premarital disinheritance. The most common is to preserve the estate for existing children. Excluding the surviving spouse from claiming any community property maintains the decedent’s property intact.
An example might be a man who entered into a second marriage, with a son and daughter from a previous marriage. The man and his second wife agree to a prenuptial agreement waiving community property and elective share rights. They guarantee the surviving spouse a lump sum of money upon the other spouse’s death. During the man’s life, he purchases a second house and several antique cars. The man dies intestate. The second wife cannot claim the house or cars as her intestate share, or as her elective share because she waived those rights. The man preserved them for his children.
Additional Inheritance Rights
Under California law, your personal inheritance does not become part of the community property. Anything you inherit from another person is your separate property and remains yours if you get a divorce.
However, if you die with this inheritance unspent and not given to another person, your spouse can now claim a portion of it under California inheritance laws, depending on whether you have children.
If your inheritance is “commingled” or mixed in with the rest of the community property, in ways that make it unclear that the inheritance was separate from the community, it becomes difficult to argue that it remains your separate property. This is especially true if you as the heir or devisee are no longer alive to argue for yourself what money was yours and what was your spouse’s.
A prenuptial agreement can specify that any money inherited remains the heir’s or devisee’s separate property even if the money is nominally comingled with the community property. This leaves you free to give that money to whomever you choose.
Estate Planning and Prenuptial Agreements
When you consult an attorney, such as one from the Law Offices of Baden V. Mansfield to write a prenuptial agreement, you should also remember to consult your accountant as well. The best attorney needs good information to provide you with a reasonable opinion, and you will need to explain your intentions to your financial manager in order to give us the details we need.
For a prenuptial agreement to be valid in California, it must comply with the Uniform Premarital Agreement Act (UPAA). Since 2002, all prenuptial agreements will be enforced only if both spouses:
- Received complete financial and property information prior to signing the agreement
- Had at least seven days between receiving and signing the agreement for independent review
- Were either represented by independent counsel or received full information in writing about the terms and effects of the agreement and signed a separate document acknowledging receipt of this information and waiving the right to counsel.
Therefore, if your intent is to have your spouse waive their inheritance rights in favor of your children from your first marriage, your new spouse must be fully informed about all the possible effects of this waiver in the prenuptial agreement.
At the Law Offices of Baden V. Mansfield, we know that the laws surrounding marriage, divorce, inheritance, and other family law are complicated and even confusing. That is why our attorneys are ready to help you with all your needs, including prenuptials that will avoid any future conflict.
Call the Law Offices of Baden V. Mansfield at (310) 546-5858 and talk to one of our knowledgeable attorneys now, or contact us at our website. We are ready to help with all your domestic needs.