Submitted by James44 on Fri, 10/29/2010 - 08:17
Posted in
I suppose this is a divorce/family law type question, but since I'm over 70 I thought I would put it in the elder law forum. I recently married my long-time girlfriend without doing any planning before hand. Now I'm concerned because I have children from a prior marriage that I would like to take care of after I die. My wife has said she will agree to any arrangements I care to make and has no interest in my money. Do you think a post nuptial agreement would help here and are they valid and enforceable in Massachusetts?
Postnuptial agreements
The concern with postnuptial agreements has always revolved around the issue of coercion, whether, for example, one party may have threatened the other with divorce if he/she refuses to sign the postnup. However, in the recent opinion of Ansin v. Craven-Ansin, the Massachusetts Supreme Judicial Court held that postnuptial agreements may be enforced if they meet certain standards. In fact, in her opinion, Chief Justice Marshall wrote that: "Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily coercive. Such contracts may inhibit the dissolution of a marriage or may protect the interests of third parties such as children from a prior relationship." post-nuptials are often called marital agreements or post-marital agreements. You can follow this link for an explanation of what standards Massachusetts courts will use to determine the validity of marital or post-nuptial agreements.
As to the second part of your question, I have no idea if a postnuptial agreement would be necessary or even desirable for your particular situation. However, it sounds like your wife is open minded about these issues. That is good thing. The two of you should sit down with a Massachusetts estate planning attorney, discuss your estate planning goals, and come up with a plan. Good luck.
Protecting property, post marriage
First and foremost, there are issues with post-nuptial agreements. You should look at other methods to accomplish the end you want to reach. Your goal, I assume, is to treat your children and spouse fairly and leave assets as you and your wife wish at death. The first method to look at in achieving your goal is an “agreement to make a will”. These agreements are enforceable in Massachusetts and do not have the strings and pitfalls associated with post-nupt's.
Essentially, you and your spouse agree to make your wills in a certain fashion. Usually this involves determining what assets go to the children, which the surviving spouse would have use of during life and what would go to the surviving spouse and heirs outright. As part of this 'agreement' the parties make wills and also arrange trusts as part of the estate planning. The entirety of the arrangement will allow almost any disposition of property the parties can agree to. While Sullivan v. Burkin, 390 Mass. 864 (1984) allows a spouse to reach the assets of any revocable trust created by the other, deceased, spouse, the ‘contract’ formed as part of the agreement to make a will should prevent the same from affecting the arrangement. This will handle the disposition of property upon death.
The disposition of property upon DIVORCE is a different issue. It is very hard to protect property from a spouse in Massachusetts. Grantor trusts cannot shield the property. Wolfe v. Wolfe, 21 Mass. App. Ct. 254 (1985). Here a post nuptial agreement may have some benefit. But it is FAR from certain in Massachusetts. All such agreement require COMPLETE disclosure of all assets to be valid. The least misstatement or failure to record any asset, however small can invalidate the transaction. Failure to disclose $200.00 can invalidate a million dollar division of property. There is no proportionalism or partial invalidation. Find a mistake and the agreement is gone. In order to deal with these issues, you need to seek out an attorney who is skilled in estate and trust law. Contact your attorney and ASK if this is his area of expertise. If not, find someone skilled in this area.
Kevin W. Gaughen,
www.gaughenlane.com