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Originally Posted On: https://thevalleylawgroup.com/blog/postnuptial-estate-planning/

 

After you and your partner marry, most types of properties and assets you gain become shared between the two of you. While this is the best possible solution for most married couples, some people wish to protect assets from the division that will occur if the marriage one day ends due to death or divorce. Others wish to protect themselves from an abrupt change in lifestyle should either of these scenarios occur.

Postnuptial agreements, sometimes referred to as postnups, are a common type of marital agreement in Arizona. Postnups outline each spouse’s boundaries and assets in the event of a divorce or other end to a marriage. Divorce is a complicated process on its own due to its emotionally-charged nature and complex legal matters. However, postnups not only simplify certain aspects of divorce, but they provide other advantages as well, including ease of estate planning.

The Valley Law Group in Arizona works closely with married couples who are looking to set up a postnuptial agreement. We use our knowledge of Arizona law to ensure all potential aspects of each postnuptial agreement are dealt with carefully and efficiently. The benefits of postnuptial agreements are often overlooked but are crucial for married couples looking for clarity and simplicity.

What Is a Postnuptial Agreement?

A postnuptial agreement is a legal arrangement between a married couple that is created after their date of marriage. This agreement outlines boundaries such as who owns specific property and financial assets and how those assets should be divided if necessary. These agreements are typically created so that in the event of divorce, separation, or death, each spouse – as well as the court – understands how the subsequent legal issues should be handled.

Specific areas that are covered in a postnuptial agreement often include alimony, debt division, and property and asset division. Outlining obligations and rights regarding these areas in a document validated by a lawyer can ensure you don’t run into any arguments over these topics should a divorce occur.

Postnups also contain information about how finances and assets should be addressed if one spouse dies, including debt management guidelines. This aspect of postnuptial agreements can be especially useful for estate planning purposes. For couples who value financial security no matter what comes, drafting a postnuptial agreement is an excellent option. Postnups are complex, especially when they address estate planning concerns, and should be drafted by an experienced estate planning or marital agreement attorney.

Are Prenuptial Agreements the Same as Postnuptial Agreements?

You may have heard of the term “prenup,” which is a common way to refer to prenuptial agreements. Prenups are similar to postnups, but there is one primary difference that makes these types of arrangements unique. Prenuptial agreements must be filed before a marriage takes place, while a postnuptial can be filed at any time after the couple is married.

Both prenups and postnups are binding legal contracts, provided they are filed correctly and are not deemed unconscionable by the court. Both can outline each spouse’s responsibilities during the marriage, as well as what should happen to existing assets in the event of a divorce. Prenups are a particularly good way to handle the assets and debts each spouse brings into the marriage.

Postnups, on the other hand, are your only option if you are already married. However, they give you the advantage of being able to address the assets you’ve accumulated thus far in your marriage, which can be valuable for estate planning purposes. It is important to note that both these types of marital agreements can save you stress and heartache during a divorce or estate planning process.

Why You Should Consider a Postnup

If you are currently married, there are plenty of benefits of postnuptial agreements. Both you and your spouse should consider the advantages of postnups and determine if these are right for you.

 

Simplified Divorce Process

While nobody begins a marriage with the assumption they will eventually divorce, divorce is a very real possibility. Fortunately, this process doesn’t have to be grueling or overwhelming.

If you and your spouse decide to divorce but previously created a postnuptial agreement, various aspects of the divorce will already be addressed, saving you time and reducing your stress. There’s no need to debate regarding which assets are yours or how essential decisions like debt division and more should be made. The agreement can outline most of the essential aspects that must be decided during a divorce.

Divorce Prevention

You may believe that a prenup or postnup is only encouraging divorce later down the line, but this is far from true.

First, postnups aren’t designed only to protect divorcing couples but can also be helpful for estate planning purposes. If a partner dies, a postnuptial agreement can ensure the living spouse is financially secure. Estate planning often includes postnuptial agreements so both spouses can still have a say in what happens to their property and assets after they pass.

Second, postnuptial agreements can create a sense of relief. Couples won’t have to argue over financial issues, and they can relax knowing these matters have been dealt with. Rather than focusing energy on dividing your assets, you both can spend time working on your relationship.

New Asset Protection

Circumstances change, especially during a marriage. You and your spouse may have opened a business together or gained considerable assets, and a postnuptial agreement can help you deal with these aspects of a more mature relationship. Similarly, inheritances, investments, and retirement accounts can all be protected or addressed with a postnuptial agreement.

Beneficiary Protection

Many couples wish to preserve certain assets or income for their children in the event that their spouse remarries after divorce or their death. Similarly, spouses who have children from previous relationships may want to ensure their children can retain certain assets. Usually, this applies to inheritances or family heirlooms.

Creating a Valid Postnuptial Agreement

If the benefits of postnuptial agreements are enticing to you and your spouse, it is essential to ensure the agreement can be enforced in a court of law. In general, the prenuptial must be drafted correctly, it must be approved by both parties, and it must be fair. Here are some key steps to follow if you wish to set up a postnuptial agreement.

Suggested Reading: AZ Postnuptial Agreement FAQs

Hire an Attorney

Legal matters can be difficult to navigate on your own, especially if they require you to create a document that must be enforceable in court. Hiring an attorney to help you create a legal, enforceable postnuptial agreement is a great way to ensure it covers all the terms you want and that the terms are fair for both parties. Your attorney can also help you ensure the document is legally prepared and executed.

 

Know the Agreement’s Implications

Both spouses should agree regarding the terms of the postnuptial agreement. If either spouse is confused about any aspect of the postnup, they should address this immediately with the attorney. All involved must be on the same page regarding the agreement.

You Cannot Force Your Spouse to Create a Postnup

Simply put, both spouses must voluntarily agree to create the postnuptial agreement, as well as to all its terms. If the court believes the postnup was signed while under coercion, while one spouse was intoxicated or otherwise incapacitated, the agreement will be invalidated. Creating the agreement with an attorney can help you ensure both you and your spouse are on record as supporting the agreement and its terms.

Spouses Must Provide Full and Fair Disclosure

All related information must be fully and fairly disclosed during the creation of the postnuptial agreement. If a critical element was not fully or fairly disclosed when creating the postnup, this could render the document invalid should the couple divorce. For example, all financial holdings, assets, and debts must be disclosed by both spouses to create a fair postnuptial agreement.

The Agreement Must Be Fair

All postnuptial agreements must be both reasonable and fair. For example, if you create a postnuptial agreement that requires your spouse to turn over all their property to you, a judge will likely render it unconscionable even if your spouse willingly signs it. The agreement should consider both your future needs and protect both parties.

The Postnuptial Agreement Must Be Notarized

 

Your attorney will ensure the document is completely valid and meets all necessary requirements. Once your attorney has validated the agreement, both spouses can sign it so it can then be notarized.

Estate Planning and Postnuptial Agreements

Estate planning is one of the primary reasons many couples create a postnuptial agreement. Some couples choose to create a postnup not because of a potential divorce in their future but because of the reality that one day, we all pass away. Married couples can create postnuptial agreements that protect their assets, their beneficiaries, and the remaining spouse after death. If the agreement made is considered valid by Arizona law, the deceased spouse’s estate can be handled according to the postnuptial agreement.

There are more specific points to address for couples who wish to create a postnuptial agreement as a part of estate planning.

Last Will and Testament

A last will and testament is a document stating how a person wants to distribute their assets and finances when they pass away. This document must be witnessed and notarized. A will can also name an executor or administrator of your estate and determine who should care for any minor children.

A will is an essential component of estate planning, as the other option is to let the state’s laws dictate how your estate and assets are distributed, a process that could trap your estate in probate court for some time. In other words, without a will, your estate will be divided according to intestate laws in Arizona. If you wish to keep certain property separate or distribute property to children, siblings, stepchildren, or someone else, a will and a postnuptial agreement are crucial.

Family Trust

Family trusts are estate planning tools that help you and your family avoid probate and protect your property and assets. In any trust, there is a grantor, trustee, and beneficiaries. You are considered the grantor, and the trustee is the person or people responsible for managing the trust. Beneficiaries are the people who will financially benefit from your estate after your death.

By setting up a family trust, you’ll be able to split your assets among your children or other loved ones and determine when each beneficiary can access their portion of the trust.

Family trusts can be used as a way to control your estate when you pass away and protect your assets while you are alive. In addition, should you become ill or incapacitated, a designated individual can manage your finances for you. The trust can be fine-tuned to address unique family dynamics created by divorce and adoption and can help your beneficiaries avoid tax implications for any inheritances.

Who Would Benefit from a Postnuptial Agreement?

It is natural to feel unsure about creating a postnuptial agreement, especially if you have no intention of divorcing. However, any couple can benefit from a postnuptial agreement, no matter how their marriage is going.

Couples with children, especially blended families or couples who wish to distribute their assets outside the boundaries of state law, would benefit from creating a postnuptial agreement. In addition, couples with significant assets or uneven incomes should consider establishing a postnuptial agreement to protect their interests in the event of a death or divorce. Finally, couples who are considering beginning the estate planning process should ask an attorney if establishing a postnuptial agreement can help clarify the distribution of their estate.

Suggested Reading: What Happens to Retirement Savings After Divorce?

How Should I Ask My Spouse About Postnups?

Postnuptial agreements can be a complicated subject to bring up. Both death and divorce can make for an uncomfortable conversation. But, if you want to ensure financial security for yourself and your beneficiaries, you’ll want to have this conversation.

 

Be mature and considerate, and ensure you’ve done some research about the topic beforehand. Carefully explain the benefits of postnuptial agreements and why you believe these would be helpful for both you and your spouse. If your spouse has any concerns, address them honestly and suggest consulting with an attorney. Listen to your spouse’s perspective and work together to draft an agreement that benefits you both.

The goal is to be open and honest and allow your spouse to share their point of view. Then, begin the drafting process with the help of an experienced estate planning or postnuptial agreement attorney.

Get Help with Postnups and Estate Planning

Postnuptial agreements are common in Arizona, including as a part of the estate planning process. These agreements can clearly define the terms of either a divorce or asset distribution after death and can ensure your assets stay with the right individuals. To be effective, these agreements require careful planning, and we can help.

At The Valley Law Group, we understand how challenging the legal system in Arizona can be. You may overlook certain details that complicate your situation, but we can help you make your matters simpler. Using our extensive knowledge, we can ensure Arizona postnuptial agreements are valid and benefit both spouses as well as any beneficiaries.