My wife and I were married almost two years ago, and things are going well. We're both in our 60's and have children from prior marriages. Recently my wife, always the optimist, has become concerned that, if something happened to one of us the other might remarry and, after that, the survivor might do something to change our estate plans to disinherit or somehow disadvantage the surviving children of the deceased spouse. I'll assume she's worried about my willingness to stick to our agreed upon plans, but I don't hold it against her, and I'm willing to do whatever it takes to put her mind at ease. She wants us to look into a post nuptial agreement because she read that these can be used to address her concerns. So, are post-nuptial agreements enforceable and could they help in our situation? Thank you in advance
Submitted by Gary on Thu, 10/06/2011 - 08:21
Posted in
Post-nuptial agreements in MA
Yes, post-nuptial agreements can be enforced in Massachusetts, if properly drafted and executed under non-coercive circumstances. However, there is some debate in the 'estate planning community' in Massachusetts over whether they are well suited to deal with the specific issue you raise in your question: forcing the surviving spouse to abide by a prior agreement regarding the ultimate disposition of the couple's assets.
Some attorneys believe an 'agreement to make a will'--also known as a 'contract to make a will'--is the preferred method of dealing with this issue. These agreements are binding contracts that allow each spouse to make a will (along with other estate planning documents) that spells out which assets will go the the testator's children upon his death and which will go to the other spouse and/or her heirs. The contract forbids the surviving spouse from changing the arrangement after the other dies.
Other attorneys seem to favor post-nuptial agreements because a contract to make a will (1) may have limited effectiveness because they cannot control the disposition of assets that pass outside of probate and (2) may be circumvented by Massachusetts law that allows a surviving spouse to reach assets placed in a revocable trust previously created by the deceased spouse. However, if the contract to make a will is entered as part of a all-encompassing estate plan, I believe these potential limitations can be avoided.
To that end (the creation of a complete and effective estate plan), anyone considering a post-nuptial agreement should talk to an estate planning attorney before entering any of the agreements mentioned above. Each case is different, and your attorney must look at your assets and your current estate plan to determine how the plan can be modified to meet your goals. It is conceivable that, depending on their situations, one couple may be better served by a post-nuptial while another may be better served by a contract to make a will. Good luck.