Jeffrey Lalloway, Esq. is an Orange County, California divorce lawyer. He has two recent posts on the value of a prenuptial or premarital agreements in his blog. His latest post is titled Prenups on Valentine's Day? Quote by me in the Daily Pilot.
I want to add that prenups executed when there are separate property interests involved (say a home or other major asset) should be accompanied by proper estate planning. The rationale is simple.
Rationale:
A. If you divorce your spouse, you want to keep your separate property.
but ...
B. If you pass away while still married to your spouse, you may wish that your separate property pass to your spouse.
Yes, a prenuptial agreement can provide for passing property upon death or waivers thereof. But if you truly want your separate property to go to your spouse upon your death with few hassles then proper estate planning may be the appropriate vehicle for doing so.
Example... say you are a famous hockey player and you own two homes. One located in San Diego where your team is located and one in Manhattan Beach, California that you consider your permanent home. You decide to marry your darling of five years. You also decide that if you divorce these properties purchased before your marriage should remain your separate property regardless if community funds are used to pay for the upkeep of the properties. A properly prepared and executed prenuptial agreeement can provide for that.
But if you are still lovingly married to this darling of yours, you may also want her to receive your homes if you die suddenly.
Having these properties in a trust or delineated in a will can ensure that, in the event of your death, that your spouse will inherit these homes. This is a good thing.
If you did not provide for death in your prenuptial agreement, your spouse may have the right to a spousal property petition/election asking the court to give her an interest in the separate properties depending on who else is alive. If you had no children, but your mother was still living at the time you passed away... your wife would be entitled to one half interest of your separate property estate and your mother would receive the other half. If this is not what you want, then estate planning is the appropriate avenue to get these wishes on paper and without court involvement. See, generally, California Probate Code Section 6401 and its subsections.
