Using a Disclaimer Trust to Transfer Land

July 7, 2025

A husband dies, with an estate plan presenting two options to his surviving spouse: she can either inherit family farmland outright or disclaim it to a separate trust for her benefit. If she chooses the trust, she will receive income for life, and upon her death, the disclaimer trust will be divided equally among her three children. How to manage this situation is explored in an article from Successful Farming, “Should Land Go Into a Disclaimer Trust or Pass to the Spouse?” There are benefits to using a disclaimer trust to transfer land.

The concern is valid, as only one of the children is farming the land, and he’s concerned about how his siblings will accept the decision. She was told that the trust would be a good option due to its tax advantages. What are her options? There are five key elements to consider:

Estate taxes. In 2025, the federal estate tax exemption is $13.99 million per person. If she disclaims her husband’s portion of the land to the trust, the value won’t count towards her own personal estate. If she keeps the land, she can take advantage of portability for her husband’s exemption under IRS Form 706. Her own estate tax limit will increase to almost $28 million. The ported tax credit will remain flat as the estate’s value grows.

Asset protection. If the land goes into the disclaimer trust, it’s in there for good, and income and principal distribution rules can’t be changed. This is beneficial for protecting assets from creditors, as well as any complications arising from a second marriage or incapacity. However, is it beneficial for the family? If they need protection, the disclaimer trust is the place for the land. However, if they need it to be accessible, it should remain outside of the trust.

Asset control. The trustee is the fiduciary responsible for assets in the disclaimer trust. They can set a rent price and make decisions on capital improvements. Questions need to be clarified regarding requirements in the trust documents. Do these rules work for the family’s best interest, or is it better to have rules as defined in the surviving spouse’s will?

Distribution. Assuming the disclaimer trust ultimately divides the land between the three siblings, it lacks a means of keeping the land together. How will the son continue farming, knowing the land will be divided? Retrofitting a farm succession plan is like trying to move crops from one field to another. They won’t look pretty and may or may not grow.

This scenario is not unlike the situation many small business owners find themselves in when the spouse who has created a business dies and no succession planning has been done. There are benefits to using a disclaimer trust to transfer land. An appointment with an estate planning attorney is crucial for creating a comprehensive plan that encompasses the farm, business and family for both the near and distant future. if you would like to learn more about disclaimer trusts, please visit our previous posts.

Reference: Successful Farming (June 9, 2025) “Should Land Go Into a Disclaimer Trust or Pass to the Spouse?”

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How Do You Protect Your Child’s Inheritance in a Second Marriage?

July 2, 2025

A recent article from MSN, “’I’m 15 years older’: My second wife says she will pass my estate onto my sons. What could go wrong?” presents a question from a man with two adult sons from a prior marriage with $1 million in personal net worth. He’s wondering whether to rely solely on his wife’s verbal assurance to pass his estate to the adult sons if he predeceases her. This begs the question: How do you protect your child’s inheritance in a second marriage?

The sons are successful in their careers and don’t need his money. The man says his wife is one of the most honest people he’s ever met. However, is trust enough?

Estate planning files are filled with broken promises, not because of dishonesty. Circumstances change, and things happen. Having an updated estate plan, including a trust to safeguard assets for children from a prior marriage, is the best way to ensure that their interests are protected.

A large age difference or a large disparity between the spouses’ assets makes it wise to take the extra steps to preserve assets for the next generation. Otherwise, there’s no requirement for the surviving spouse to pass the assets on to the children.

If the surviving spouse remarries, the assets could even end up with children of their surviving spouse.

There are time-tested ways to distribute assets to children from a prior marriage to ensure that the spouse is well cared for and the children are not disinherited. One way to do this is to use a will to divide assets between the surviving spouse and the children.

Another is to leave the home, if it is in your name only, to the surviving spouse as a life estate, so they will be able to live in it for the rest of their life. The house will need to be maintained, and property taxes paid during that time. When the spouse dies, the house can then be left to the children to sell or keep. This can become complicated if the children are in a hurry to sell the home and the surviving spouse has a long life expectancy.

Marital trusts, like a Spousal Lifetime Access Trust or SLAT, are used to leave assets to the surviving spouse, while protecting the children’s inheritance. They can also be used to control how the assets in the trust are used. Funds can be earmarked for college, or if a child requires rehabilitation, the trust can fund it or set a requirement before distributions are made.

Tax benefits using a marital trust are higher than those for a straightforward inheritance, another reason to use a marital trust.

Note, this is not an issue to be resolved with a pre- or post-nuptial agreement. A will goes into effect upon your passing, and a trust becomes active once it is established. A pre- or post-nuptial is a good idea for a second marriage with age and net worth differences. However, this kind of situation requires a will and a trust.

Talk with an experienced estate planning attorney to create an estate plan to protect your child’s inheritance in a second marriage It will take the burden off all of you, since the decisions for asset distribution will be in place, and you can focus on enjoying your life with your new spouse. If you would like to learn more about inheritance planning, please visit our previous posts.

Reference: MSN (May 3, 2025) “’I’m 15 years older’: My second wife says she will pass my estate onto my sons. What could go wrong?”

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Spousal Lifetime Access Trusts can Protect Your Partner

Avoid the Survivor’s Tax Penalty After the Death of a Spouse

June 30, 2025

When one spouse passes away, the surviving partner often assumes their financial obligations will decrease. However, many widows and widowers face a surprising increase in their tax burden. Known as the “survivor’s penalty,” this issue affects individuals who transition from joint filing to single status, often while still receiving the same or similar income. There are some tips to avoid the survivor’s tax penalty after the death of a spouse.

As a result, survivors may end up in a higher tax bracket, lose key deductions and pay more on Social Security or investment income. If you or a loved one is navigating life after a spouse’s death, proactive tax and estate planning can help reduce this burden and preserve your financial stability.

What Is the Survivor’s Penalty?

The survivor’s penalty refers to the increased income taxes surviving spouses may face after switching from “married filing jointly” to “single” or “qualifying widow(er).” This change impacts:

Income tax brackets, which become narrower for single filers
Standard deductions, which are cut nearly in half
Taxation of Social Security benefits, which may be higher if income remains steady
Medicare premiums, which increase with higher taxable income

This situation is prevalent among retirees who rely on Social Security, pensions, or retirement accounts for their income. A surviving spouse may lose only a portion of the household income but still be taxed as a single person, resulting in a higher effective tax rate.

Real-World Impact on Retirees

Consider a couple filing jointly who has a combined income of $90,000. Their federal tax liability may be relatively modest thanks to the wider joint tax brackets and higher standard deduction.

However, if one spouse dies and the survivor continues to receive $70,000 in income, including retirement accounts and survivor benefits, they may be subject to a higher tax bracket. That income could also cause more of their Social Security benefits to become taxable and raise their Medicare Part B premiums.

These hidden costs can take a significant toll on a surviving spouse, especially during an emotionally and financially vulnerable time.

How a Probate Attorney Can Help You Plan Ahead

The best way to avoid the survivor’s penalty is to anticipate it while both spouses are still living. With the help of a probate or elder law attorney and financial advisor, couples can build tax-efficient strategies that reduce exposure.

Some options include:

Roth conversions: Paying taxes on retirement accounts now to reduce taxable income later
Adjusting Social Security claiming strategies: Coordinating timing to maximize survivor benefits
Splitting income-producing assets: Using trusts to distribute income more evenly across heirs or generations
Using the step-up in basis: Taking advantage of tax resets on inherited assets to reduce capital gains

It’s also important to ensure that estate planning documents reflect your current wishes. A surviving spouse who is suddenly left in charge of financial and medical decisions needs clear legal authority through powers of attorney, healthcare proxies and updated wills or trusts.

What to Do after a Spouse’s Death

If you are already a surviving spouse, it’s not too late to act. In the year of a spouse’s death, the surviving partner can still file a joint return. After that, unless they have a qualifying dependent, they must file as single.

Working with a probate attorney can help avoid the survivor’s tax penalty after the death of a spouse. They will help sort through estate settlements, beneficiary changes and tax filings. A CPA or financial planner can also assess how the change in filing status impacts required minimum distributions (RMDs), Medicare and taxes. If you would like to learn more about tax planning after the death of a loved one, please visit our previous posts.

Reference: CNBC (November 6, 2024) “You could face the ‘survivor’s penalty’ after a spouse dies — here’s how to avoid it”

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Preparing for Funeral Costs

June 25, 2025

Funerals are often among the most significant unexpected expenses a family faces after the loss of a loved one. While discussions about end-of-life arrangements are rarely easy, preparing for funeral costs in advance offers peace of mind and protects family members from making rushed financial decisions during a time of grief and emotional distress.

The average cost of a traditional funeral today ranges between $7,000 and $12,000. This includes the basic service fee, casket, embalming, transportation, and use of a funeral home for viewing or ceremony. If burial is chosen, additional costs, such as a cemetery plot, headstone, and burial vault, may apply. Cremation can be less expensive, but the cost still varies widely depending on the services selected.

With so many variables—and with costs rising year after year—understanding funeral expenses and incorporating them into your estate plan is a practical and compassionate step.

What Makes Up Funeral Costs?

Funeral costs can be categorized into two main areas: services provided by the funeral home and third-party expenses. Funeral home services often include preparation of the body, coordination of ceremonies, securing permits, and filing death certificates.

Third-party expenses may include:

Cemetery plot or cremation
Headstone or grave marker
Officiant or clergy fees
Newspaper obituary
Flowers or printed materials

These costs can add up quickly, particularly if the family chooses to hold multiple services or make last-minute decisions. Many grieving families feel pressure to select the “best” options without fully understanding the associated financial impact.

Payment Options and Planning Tools

Families without a plan in place often scramble to cover funeral expenses, sometimes relying on credit cards, personal loans, or crowdfunding. By contrast, those who prepare in advance may use:

Final expense insurance or a life insurance policy
Payable-on-death (POD) accounts designated for funeral costs
Prepaid funeral plans through a funeral home
Specific provisions in a will or trust to allocate funds

Each method has its pros and cons. For example, prepaid funeral plans may offer cost guarantees but lack flexibility if your preferences change or if you move. Life insurance provides broader flexibility but may take time to access after death.

Working with an estate planning or probate attorney can help you coordinate these tools, ensure that funds are available and confirm that your wishes are clearly documented and legally enforceable.

Communicating Your Funeral Wishes

Many people assume their family “just knows” what they want. However, even close relatives may disagree or misremember details. Putting your wishes in writing helps eliminate confusion and conflict.

This can be done through a letter of instruction, an advance directive, or a section within your estate planning documents. Topics to consider include:

Burial vs. cremation
Religious or cultural preferences
Type of ceremony or service
Preferred funeral home or cemetery
Special readings, music, or attendees

Providing this information relieves loved ones from having to guess—and allows them to focus on honoring your memory.

Work with a Probate Attorney for Funeral Planning Guidance

A well-prepared estate plan addresses both financial and personal aspects of end-of-life planning. Beyond funeral instructions, it may include powers of attorney, advance healthcare directives and plans for long-term care.

Probate attorneys help families navigate the legal steps after a death. However, advanced planning ensures that the process starts with clarity rather than confusion. A clear, well-organized estate plan—including preparing for funeral costs—can reduce stress, protect family relationships and honor your values. If you would like to learn more about funeral planning, please visit our previous posts.

Reference: AARP (Dec. 1, 2021) “8 Tips for Funeral Planning”

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Help Your Executor Fulfill Your Wishes

June 23, 2025

Taking on the responsibility of being an executor is a big job that doesn’t come with instructions. When you pass away, the executor is the person who oversees your estate. It’s usually a trusted family member, says a recent article from Kiplinger, “Simple Ways to Make Your Executor’s Job Less of a Pain.” Here are some ways to help your executor fulfill your wishes.

The term “executor” is used to denote the person approved by the court as part of the probate process to distribute assets, while “administrator” is the term used if the person died without a will and the court named a person to manage their estate.

Regardless of the term used, the role of the executor is a serious one. One study reports that the average executor devotes more than 570 hours of work over 18 months, from start to finish.

If the goal is to avoid or minimize probate, an estate planning attorney can help place many assets outside of the probate estate. This is done using trusts and changing accounts to “Pay on Death” or “Transfer on Death.” Make sure to fund a trust once it’s established, or the assets owned by the trust will revert to the estate. You should also be cautious when retitling accounts to avoid inadvertently disinheriting loved ones. If all your cash is in one account and you want it to go to multiple heirs, but you name one person to receive it upon your death, there is no legal requirement for them to share the wealth.

When your executor takes the reins, they’ll need to have some cash to pay for more than a few costs: final year of income tax, medical bills, credit card debt and estate taxes. If you are leaving real estate, will there be cash for the executor to pay for the home’s upkeep?

If all your assets are passed on to others without any left for the estate, they will have to deal with an insolvent estate. Heirs may also find themselves being chased for payments by creditors, who have the right to come after anyone receiving decedent assets for payment of an estate’s debt.

How can you be sure there will be cash to pay for estate debts? One way is to get heirs to agree to pay estate debts in proportion to their inheritance. This can be particularly challenging for families, especially when financial hardships or family disputes are present.

An estate planning attorney can help create an estate plan that protects your assets from probate, while ensuring that there are sufficient funds for the executor to pay debts.

One big way you can help your executor fulfill your wishes is to create and maintain a list of all your assets and debts. With so many of our accounts now online, there are few paper trails to follow. Bank statements, brokerage accounts, credit card bills, mortgage statements, insurance policy payments, etc., are all more likely to be online than in the mail. One suggestion is to create a separate email account for all your financial matters and share it with the person who will be your executor.

Having all these tasks done admittedly takes time. However, it will spare your executor and heirs a great deal of stress, save them time, and let them focus on celebrating your life, not gritting their teeth because there’s so much work to be done. If you would like to learn more about the role of the executor, please visit our previous posts.

Reference: Kiplinger (May 30, 2025) “Simple Ways to Make Your Executor’s Job Less of a Pain.”

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Pros and Cons of Testamentary Trusts

June 18, 2025

A testamentary trust is a type of trust established through a last will and testament. Unlike a living trust, it doesn’t take effect until after the person’s death and only comes into existence during the probate process. There are pros and cons of testamentary trusts. These trusts can be a powerful estate planning tool for individuals who want to provide oversight and structure in how assets are distributed to heirs. Parents of minor children often use them, individuals concerned about a beneficiary’s financial habits, or those who want to protect assets from creditors or divorcing spouses.

However, testamentary trusts have limitations, primarily because they are subject to probate and are part of the public record. Understanding the advantages and disadvantages of this planning strategy can help you determine whether it aligns with your goals.

How a Testamentary Trust Works

A testamentary trust is created by including specific instructions in your will. These instructions name a trustee, outline how and when the trust assets should be used, and define who will benefit from the trust.

Since the trust is part of the will, it is subject to probate—a court-supervised process that validates the will and oversees the distribution of the estate. Only after the court finalizes probate does the testamentary trust become active.

The trustee then manages the assets according to the instructions, including paying for education, distributing funds over time, or restricting access until the beneficiary reaches a certain age.

Benefits of Testamentary Trusts

One of the primary benefits of a testamentary trust is the control that it affords. The person creating the trust (the testator) can set rules that continue long after death. This is particularly useful for:

Minor children who cannot legally manage money
Adult children with poor financial habits or substance abuse issues
Beneficiaries with disabilities who need long-term support
Families who want to protect their inheritance from lawsuits or divorce settlements

Because the trust is created after death, assets are not transferred or placed into it during the person’s lifetime, making it a simpler option for those who don’t want to manage a living trust.

Testamentary trusts also allow for the naming of a professional or trusted individual as a trustee, providing an additional layer of financial oversight and guidance for the beneficiary.

Drawbacks to Testamentary Trusts

Despite the control they offer, testamentary trusts have disadvantages. Since they are created through the will, they require probate, which can be a time-consuming, costly and public process.

The trust also cannot begin operating until the probate is concluded, which may delay access to funds during a critical period. If the trust is intended to support children or dependents immediately after death, this delay could create financial hardship.

Unlike revocable living trusts, which are created and managed during a person’s lifetime, testamentary trusts offer no opportunity to test or adjust the terms in advance. Once the testator passes away, the terms are fixed.

Finally, because testamentary trusts are part of the probate record, they may be more vulnerable to disputes or challenges from dissatisfied heirs.

Is a Testamentary Trust Right for You?

For some families, a testamentary trust offers the right balance of oversight and simplicity. It’s often chosen by individuals who have straightforward estates but want to add some protection for vulnerable heirs.

Others may benefit more from a revocable living trust, which avoids probate and offers greater privacy and flexibility.

Working with an estate planning attorney can help you understand the pros and cons of testamentary trusts, draft appropriate terms and create a plan that aligns with your goals and your family’s needs. If you would like to learn more about testamentary trusts, please visit our previous posts.

Reference: MetLife (March 13, 2025) “Testamentary Trust: Definition and How It Works”

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The Estate of The Union Season 4|Episode 4 is out now!

June 16, 2025

The Estate of The Union Season 4|Episode 4 is out now! While it can sound shocking, the Mortality Rate in Texas is 100%!!!

Brad is an old Boy Scout and the Scout’s motto is “Be Prepared.” This edition of The Estate of the Union is all about preparation and what terrible things can happen to the family of someone who was NOT prepared.

Ann Lumley is an extraordinarily respected attorney, and she is the Director of After Life Care here at Texas Trust Law. Ann and Brad discuss the challenges faced by loved ones whenever anyone passes away, and particularly when the deceased had no planning or inadequate planning. Ann has the ability communicate complex concepts clearly – and with a sense of humor too!

In each episode of The Estate of The Union podcast, host and lawyer Brad Wiewel will give valuable insights into the confusing world of estate planning, making an often daunting subject easier to understand. It is Estate Planning Made Simple! The Estate of The Union Season 4|Episode 4 is out now! The episode can be found on Spotify, Apple podcasts, or anywhere you get your podcasts. If you would prefer to watch the video version, please visit our YouTube page. Please click on the links to listen to or watch the new installment of The Estate of The Union podcast. We hope you enjoy it.

Texas Trust Law focuses its practice exclusively in the area of wills, probate, estate planning, asset protection, and special needs planning. Brad Wiewel is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. We provide estate planning services, asset protection planning, business planning, and retirement exit strategies.

What’s the Difference Between Estate and Trust Administration?

June 9, 2025

When loved ones die, their assets don’t automatically transfer to heirs. Whether the decedent had a will, a trust, or both, someone must carry out their wishes and follow legal steps to ensure that everything is distributed properly. This is where estate administration and trust administration come in. What’s the difference between estate and trust administration?

Both processes involve managing assets, paying debts and ensuring that beneficiaries receive what they are entitled to. However, the similarities end there. The legal structures, court involvement and administrative duties vary significantly depending on whether the assets are passing through probate or being managed under a trust.

Understanding the distinction helps families avoid delays, prevent disputes and choose the right planning tools.

What Is Estate Administration?

Estate administration refers to the legal process of settling a deceased person’s affairs when assets are passed through a will or when no will exists. This process is commonly known as probate.

In probate, a court oversees the distribution of the decedent’s property. The executor named in the will (or an administrator appointed by the court if there is no will) is responsible for:

Collecting and inventorying assets
Notifying creditors and paying valid debts
Filing tax returns
Distributing remaining assets to beneficiaries according to the will or state intestacy laws

The probate process can take several months or longer, depending on the complexity of the estate, state laws and whether disputes arise. While probate ensures court oversight and accountability, it can also be public, time-consuming and costly.

What Is Trust Administration?

Trust administration occurs when a person dies with a valid trust, typically a revocable living trust that becomes irrevocable upon death. Assets titled in the name of the trust avoid probate and are instead managed privately by the named trustee.

The trustee’s duties include:

Identifying and managing trust assets
Notifying beneficiaries
Paying debts and taxes
Distributing trust property according to the trust’s terms

Unlike probate, trust administration usually does not require court involvement. This results in faster, more private handling of the estate. However, the trustee is still legally obligated to act in the best interests of the beneficiaries and follow the terms of the trust precisely.

Trustees may still need legal or financial guidance, especially if the trust includes business interests, real estate, or ongoing support for a minor or special needs beneficiary.

The Roles of Trust and Estate Administration

What’s the difference between estate and trust administration? Neither estate nor trust administration is inherently better. Instead, they serve different purposes depending on the family’s needs and the deceased’s planning goals.

Trusts can streamline the asset distribution process, reduce court involvement and protect privacy. However, they require planning during life to fund the trust and title assets properly. A will, by contrast, is simpler to create but often leads to a lengthier probate process after death.

In many cases, a comprehensive estate plan includes both a will to address any remaining assets outside the trust and a trust to manage major property.

Proper planning with a qualified estate planning attorney ensures that the chosen administrator or trustee understands their role and is legally equipped to handle responsibilities smoothly. If you would like to learn more about estate administration, please visit our previous posts.

Reference: Justia (October 2024) “Trust Administration Law”

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Beneficiary Designations Usually Take Precedence over Will

June 2, 2025

Estate planning is more than just writing a will. Some of people’s most valuable assets—retirement accounts, life insurance policies, and certain bank accounts—do not pass through a will at all. Instead, these assets are controlled by beneficiary designations filed with financial institutions. This distinction is critical. If the information in a will conflicts with what’s listed on a beneficiary form, the beneficiary designations usually takes precedence over a will. Understanding how these two tools work together helps prevent unintended outcomes, legal disputes, and family confusion.

How Beneficiary Designations Work

Beneficiary designations are instructions you provide directly to financial institutions indicating who should receive specific assets upon your death. These forms are typically used for:

Life insurance policies
IRAs and 401(k)s
Payable-on-death (POD) or transfer-on-death (TOD) accounts
Annuities and some brokerage accounts

When you pass away, the institution distributes the asset to the named beneficiary—no probate required. Because these transfers occur outside of the will, courts and executors are not involved.

This is why it’s crucial to keep these designations updated. For example, an outdated form listing an ex-spouse can result in that person receiving your retirement account even if your will says otherwise.

When the Will and Beneficiary Form Don’t Match

If your will names your son as the heir to your IRA but your beneficiary form lists your daughter, the financial institution must follow the form, not the will. The same applies if your will states that all assets should be divided equally among your children, but a retirement account names only one of them.

These inconsistencies can create confusion, especially if family members interpret the will as the “final word.” Unfortunately, courts always side with the financial institution’s records when a valid beneficiary form is in place.

That’s why periodic reviews of beneficiary designations are essential, especially after significant life events such as marriage, divorce, birth of a child, or death of a loved one.

When the Will Takes Priority

Assets not subject to beneficiary designations typically pass through probate and are governed by the terms of the will. These may include:

Personal property (furniture, jewelry, household goods)
Real estate not held in joint ownership or a trust.
Bank or investment accounts without a TOD or POD designation

In these cases, the executor follows the will’s instructions, and the assets are distributed through probate. For this reason, a will is still a vital part of every estate plan—but it is only one piece of the puzzle.

Coordinating Your Estate Plan

Beneficiary designations usually takes precedence over a will. Ideally, your beneficiary designations, will, and trust documents should work together to avoid conflicts. An estate planning attorney can help review each component, confirm that assets are appropriately titled, and ensure your wishes are carried out consistently across all accounts and documents.

If you intend for a trust to receive retirement funds or life insurance proceeds, you must name the trust as a beneficiary or reference it in your will. Failing to do so may result in assets going to the wrong person or being subject to unnecessary taxes.

Estate planning is not a one-time event. Regular updates ensure that your legal documents reflect your current wishes, relationships, and financial circumstances. If you would like to learn more about beneficiary designations, please visit our previous posts.

Reference: Forbes (June 2, 2015) “Your Will And Trusts Aren’t Enough: Using Beneficiary Designations As An Estate Plan”

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Older Couples Should Consider Premarital Agreement

May 29, 2025

Marriage later in life brings special joys—and specific legal and financial considerations. Whether it’s a second marriage, a partnership after raising children, or finding love after retirement, older couples often have more complex financial situations than younger newlyweds. Older couples should consider a premarital agreement.

Assets, retirement savings, real estate and inheritances accumulated over decades must be handled with care. A premarital agreement (often called a prenuptial agreement) is one of the most practical tools to protect individual and family interests. Far from being a sign of mistrust, a well-crafted agreement fosters transparency, protects loved ones and reduces the risk of disputes if the marriage ends through death or divorce.

Why Older Couples Should Plan with a Premarital Agreement

Older couples frequently bring established financial histories into marriage. They may own homes, businesses, investment portfolios, or have obligations like alimony or child support from previous relationships. Some may wish to preserve assets for adult children or grandchildren.

Without a premarital agreement, state laws—rather than personal wishes—may determine how property is divided upon divorce or death. In many cases, a surviving spouse is entitled to a significant portion of the estate, even if the deceased spouse intended to leave more to children from a prior marriage.

A premarital agreement allows couples to customize these outcomes, ensuring that their wishes are respected and that their marriage starts with full financial clarity.

Key Issues to Address in a Premarital Agreement

Premarital agreements typically address how assets and debts will be handled both during the marriage and in the event of divorce or death. Common topics include:

Identifying separate versus marital property
Defining how jointly acquired assets will be divided
Specifying inheritance rights for children from previous relationships
Clarifying responsibility for debts incurred before or during the marriage
Determining spousal support or waiving it altogether

Couples may also include agreements about healthcare decision-making, although these issues are often handled through separate estate planning documents.

While some topics, like child custody or child support for minor children, cannot typically be negotiated in advance, most financial and property-related matters are fair game.

Protecting Heirs and Family Interests

For older individuals with children from previous marriages, a premarital agreement can protect family inheritances. Without one, surviving spouses could inherit property that parents intended to pass directly on to their children.

Using a premarital agreement in combination with updated wills, trusts and beneficiary designations creates a comprehensive plan that reflects your true intentions and avoids accidental disinheritance.

It’s also an act of love—shielding family members from costly, painful legal disputes and ensuring that everyone understands and respects your wishes.

Premarital Agreements Strengthen Communication

Discussing finances can be uncomfortable. However, it builds stronger foundations. A premarital agreement encourages open conversations about money, values and expectations. It forces couples to talk about important topics—retirement plans, caregiving needs and financial obligations to others—that might otherwise be overlooked.

Rather than undermining romance, these discussions show respect for each other’s histories and futures. They create shared understanding and prevent surprises down the road.

The Importance of Independent Legal Advice for Each Spouse

For a premarital agreement to be legally enforceable, each party should have their own attorney review the document. This ensures that both individuals understand their rights and obligations and that the agreement cannot be challenged later due to claims of coercion or misunderstanding.

Older couples should consider a premarital agreement. Working with an experienced estate planning or family law attorney ensures that the agreement is tailored to your state’s specific requirements and your unique circumstances. If you would like to learn more about planning for older couples, please visit our previous posts.

References: American College of Trust and Estate Counsel (ACTEC) (Nov. 5, 2020) “What Is a Prenuptial Agreement?” and Hello! Magazine (April 2025) “King Charles and Queen Camilla’s Separate Homes: Was a Marital Agreement Involved?”

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Category: Assets

What Is the Survivor’s Penalty?

Real-World Impact on Retirees

How a Probate Attorney Can Help You Plan Ahead

What to Do after a Spouse’s Death

What Makes Up Funeral Costs?

Payment Options and Planning Tools

Communicating Your Funeral Wishes

Work with a Probate Attorney for Funeral Planning Guidance

How a Testamentary Trust Works

Benefits of Testamentary Trusts

Drawbacks to Testamentary Trusts

Is a Testamentary Trust Right for You?

What Is Estate Administration?

What Is Trust Administration?

The Roles of Trust and Estate Administration

How Beneficiary Designations Work

When the Will and Beneficiary Form Don’t Match

When the Will Takes Priority

Coordinating Your Estate Plan

Why Older Couples Should Plan with a Premarital Agreement

Key Issues to Address in a Premarital Agreement

Protecting Heirs and Family Interests

Premarital Agreements Strengthen Communication

The Importance of Independent Legal Advice for Each Spouse

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