Is your estate plan incomplete without a prenup?

On Behalf of | Mar 28, 2018 | blog

You never expected it to happen, but you are on the cusp of your second marriage. This time, you feel like you have found the one, and you are ready to start this new chapter in your life. Entering a second marriage is not something you intend to do with blinders on. If your first marriage ended badly, you may feel it is dangerous to throw caution to the wind.

However, the thought of a prenuptial agreement to protect your interests if something goes wrong leaves a bad taste in your mouth. While you may be like many who fear that signing a prenuptial agreement may jinx your relationship, there are some factors to consider regarding the use of a prenup in your estate plan, especially if you have children from a previous marriage and live in North Carolina.

Elective share laws

You have likely had long talks with your intended, and he or she is well aware of your plans for your children from your first marriage. In fact, you may have gone over your estate plan, showing your future spouse how your children will inherit the bulk, if not the entire estate.

What you may not realize is that North Carolina, like 40 other states, is an elective share state. This means that, even if your will clearly states that your children receive most of your estate, your spouse can elect to receive the legal share allowed to a spouse, which could be as much as 50 percent, depending on how long you are married.

How a prenup can help

Despite your plans for your children, without a prenuptial agreement stating otherwise, your spouse has the right to claim his or her share of your estate — your savings, your heirlooms, your family business — leaving your children without a legal leg to stand on.

A prenuptial agreement, on the other hand, supersedes elective share law and can ensure that your wishes are fulfilled after your death. However, you must be careful that the drafting and signing of the prenup follows the law so there is no danger of the court challenging it. You can do this by making full disclosure of your assets and debts so your spouse will have a complete understanding of the privileges he or she is waiving. It is also wise to have separate legal counsel so that each of you is fully aware of your rights regarding the document.