Prenuptial Agreements – How to Protect Your Children

Many people are concerned that having a prenuptial agreement prepared prior to being married is going to create an adversarial relationship with their new spouse. However, having a prenuptial agreement prepared is probably still a good idea, especially if you have children from a prior marriage. Here’s why.

In New York, there exists a law called the Right of Election. This law says that if you are married, your spouse can’t cut you out of his or her estate by drawing a will leaving everything to a new “significant other”. Instead, you have the right to receive a portion of your spouse’s estate even if he or she prepares a will that leaves you nothing!

The problem with this law is that if you have children from a prior marriage and your new spouse receives all of your assets upon your death, he or she can leave it all to their children when they die. This means that your children would not receive any of the things you worked for all your life.

With a prenuptial agreement you can ensure that your children would not be disinherited by making a specific provision that requires your new spouse to waive his or her Right of Election. This provision could say that upon the death of the second spouse, everything is divided equally between all of the children! Or you could make a specific provision for your own children.

There is one more thing I will say. The chance of creating an adversarial relationship with your intended spouse is greatly reduced if the two of you sit down with a professional family mediator and work out the terms of this agreement together instead of allowing separate lawyers to do this for you!

Do you have any other suggestions as to the benefits of a prenuptial agreement? If so, please feel free to share them in the “Leave a Reply” box below.

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