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Consider a Prenup to Protect Your Children’s Inheritances

Schwei & Wendt, S.C. May 6, 2019

If you have children from a previous relationship and are considering getting married again, you should take care to protect your children’s interest in your property. If you divorce, a prenuptial or postnuptial agreement can pin down who came into the marriage with what, simplifying the division of the marital estate. If you die, a prenup or postnup can help ensure your kids get what you expect.

A prenuptial agreement is a contract that you enter into before your marriage. It can cover most financial issues, such as what property should be considered separate from the marital estate and who, if anyone, would be entitled to alimony in the event of a divorce.

A postnuptial agreement is just like a prenup except that it is entered into between married partners.

A prenup or postnup may be able to help you by:

  • Designating your assets as separate from marital property

  • Setting out how the marital estate will be divided in the event of divorce

  • Keeping you from assuming the other party’s debts

  • Determining how your property will be distributed upon your death

  • Clarifying the financial rights and responsibilities of each party

  • Determining if and when alimony would be awarded

If you don’t get a prenup or postnup, Wisconsin law will determine how your assets and debts are divided in the event of a divorce or your death.

For the purposes of divorce, Wisconsin considers most property and debt to be part of a community estate, which is divided essentially equally. It’s possible to keep certain property separate from the marital estate, which keeps that property from being divided. However, a valid prenup of postnup will make that process much easier and ultimately less costly.

If you were to die without a will or estate plan in place, your prenup or postnup could be used as evidence when determining your spouse’s share of the inheritance. Without a will or estate plan, Wisconsin law presumes that your spouse will receive half of your estate. If you want a different outcome, you need to take action.

It Doesn’t Seem Very Romantic to Ask for A Prenup, but You Still Should

If you’re in a situation where a prenup or postnup would be an asset to you, don’t put off talking to your spouse. Get them in on the process and let them have the agreement reviewed by their own lawyer.

Think of it this way. If you have important financial issues to plan for, such as children from a previous relationship, wouldn’t your fiancé or fiancée want to understand and help with your plan? Before you commit to a marriage, you should be comfortable talking over complex and contentious issues with your intended.