[WSBAPT] Prenup vs Postnup

[Paul Neumiller]

I need a little guidance on a topic outside of my comfort zone.  Estate
planning clients entered into a prenuptial agreement about 24 years ago
and are still married.  Generally upper middle class people with probably
less than $1 mil joint assets) In reviewing their estate planning needs
and reviewing the prenup, I note that many of the assets identified as
separate property in the exhibits in the prenup are now long gone and have
been rolled into new assets such as new savings accounts, etc.  This is
important because under their Wills, separate property goes to children
from previous marriages and community property goes to surviving spouse.
Even the family home remains two sets of separate property based on the
amount contributed by both parties upon purchase regardless of who pays
the mortgage, etc.  I have pointed out that this may be a nightmare for
the surviving spouse because then the surviving spouse is only part owner
of the family residence along with the deceased spouse’s children from a
previous marriage and the kids may try to force a sale in order to get
their money out of the residence.  Not to mention the tracing problems the
surviving spouse and children will have trying to figure out what is still
separate property after 24 years.

 

OK, still with me?  I need to know if the clients (I have a waiver of
conflict) should just amend their prenup by replacing the exhibits with
updated assets (Exh. A – her separate property and Exh. B – his separate
property) and then add a new Exhibit C for what they agree is their
community property such as the family residence.  (After 24 years, they
have decided this marriage might actually work out.  The both had previous
nasty divorces.)  

 

OR, should they just abandon the prenup and enter into a limited postnup
that identifies current separate property and community property?

 

 

 

 

 

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