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Should a prenup be part of your estate plan?

When California couples decide to marry, they may also be prompted to make other decisions about their future planning. This is especially true for people with specific circumstances, such as owners of closely held businesses or parents of children from a previous relationship. Prenuptial agreements are of course helpful in the case of a future divorce, but they can also serve as a part of the estate planning process. Nearly every state, including California, contains a statutory share provision that prevents one spouse from disinheriting the other in a will.

The statutory share in California

In California, a spouse’s statutory share is 50% of the estate. These provisions are designed to protect spouses from being disinherited and impoverished upon the death of their partner. However, the share can be more complicated under specific circumstances. For example, both spouses may have substantial assets of their own, but one partner may have children from a prior marriage. Both spouses may have children from a prior relationship that require the majority of their estates. Others may have closely held businesses that they want to protect from division or a loved one with special needs that they want to support through their estate.

A prenuptial agreement for estate planning

A prenuptial agreement can help spouses to handle these estate planning concerns early in the relationship. A postnuptial agreement can also be concluded between spouses after the marriage. A prenup can provide specific provisions for how property is to be handled in the case of divorce or in the case of one spouse’s death. However, a prenuptial agreement must also be concluded fairly in order for it to be enforced in court.

This means that each spouse should have their own lawyer to provide input in drafting and give their client unbiased advice that protects their interests. However, for many spouses, a prenuptial agreement may help to ease concerns for both parties by ensuring their key concerns are addressed.