Wedding season is here! While it’s important to check off items such as a venue, the guest list, and the photographer, another item couples should check off is setting up an estate plan. Even though many believe an estate plan is only needed after you get married or if you are older, that’s not always true.
Since California is not a “common law marriage” State, if you are engaged, or simply living with a significant other, that person would generally not have any rights to your property should you pass away without having an estate plan that provides for them; and they will have no rights in terms of making medical decisions for you, nor any “say so” in decisions about your care.
For couples tying the knot for a second time, or those who have invested time and/or money into their partner’s property or business that is not jointly owned, it is imperative to create an estate plan to secure their rights in the event of death or separation. Younger couples who may not have many assets might think having an estate plan is not for them (and, surely Jeff Bezos and McKenzie Scott felt that way once), but as time goes by, people do accumulate assets and property, and setting rules about property rights is best done at the outset of this process. Before walking down the aisle, it is wise to consider and discuss the benefits of creating an estate plan.
What Should Such an Estate Plan Include
A premarital (or prenuptial agreement) is a contract which “contracts out” of California’s Community Property laws that automatically apply to married couples, in that all marital property is divided 50/50 upon divorce, and spousal support is generally awarded. As such, one of the goals of a prenuptial agreement is to ensure that your property acquired prior to marriage remains yours and yours alone, should the marriage fall apart, instead of being divided in divorce. This agreement also outlines how the jointly owned property would be separated if the couple were to split up. Premarital agreements are critical when you expect a large inheritance.
In addition, prenuptial agreements contain provisions about the separateness of your income after the marriage, the separateness of your business started before or during the marriage (think, Amazon), separateness of debts of each spouse, inheritance rights, spousal support obligations, etc.
Prenuptial agreements in California are highly technical and certain elements must be met for the agreement to be deemed valid by a court. For example, a valid prenuptial agreement must be:
- Signed by both parties and notarized.
- Signed before the marriage (property agreements signed after the marriage are known as postnuptial or postmarital agreements).
- Signed absent fraud, duress, or undue influence, whereby both parties fully understand the English language (if a party is not a native speaker, an interpreter must be engaged).
- Each party should be represented by their own counsel (i.e., both parties retain their own attorneys to represent them). One of the attorneys is the “Drafting Attorney” (who prepares the agreement), and the other attorney is the “Reviewing Attorney.” The final agreement is the product of negotiations between the couple and their respective attorneys.
- A party must wait a minimum of seven days from the date the Drafting Attorney presented the document to him/her before that party may sign the agreement under the guidance of his/her own counsel.
- Each attorney must certify the Premarital Agreement.
- Each party must provide full disclosure of their finances, including income, assets, and debts, and the listed assets and liabilities are confirmed as the separate property of the respective party.
- Each party must sign a “Waiver of Further Disclosure of Financial Information” stating that the information they received from the other party is sufficient for purposes of the validity of the agreement and that they agree not to receive any future information about the other party’s assets or liabilities going forward (after the marriage). If the information presented in the agreement is incomplete, the agreement may be deemed invalid.
- The parties may agree to fully waive spousal support or to agree to specific terms of spousal support rather than be left at the mercy of the court to set spousal support at dissolution.
Because of the highly technical nature of this document and the breadth of property rights and liabilities that are contracted between the parties, prenuptial agreements are highly complex and generally fairly involved documents. As such, they are usually a costly legal undertaking. In other words, even a “simple” prenuptial agreement is a very involved and complex document, and the need to retain two separate attorneys makes this project more expensive than most folks anticipate.
Separate Property Trust
When setting up a premarital agreement, it is only natural and logical to also set up a separate property trust — to be the recipient or “holder” of all that property which is earmarked as “separate” in the agreement. On the one hand, a separate property trust furthers the intent of a premarital agreement that property will not be held in joint names. On the other – it protects such separately owned property from Probate and allows the owner to set forth the terms on who will be in charge of such trust upon the owner’s death and who will be the beneficiary of the property owned by the trust.
This is especially true in a second marriage scenario where spouses want to ensure that their respective separate property goes to their respective set of children and family members, rather than entirely to the surviving spouse (although many people do include the spouse as a partial (albeit not a sole) beneficiary of a separate property trust).
This type of planning is especially practical in the event a fiancée dies before the wedding — a separate property trust can include terms to provide for the fiancée/significant other even before the marital union takes place. It can be devastating if a couple plans their life together and one of them dies prior to the wedding – the surviving partner is literally left with no rights or say-so over property division or decisions about the disposition of last remains, etc., or even something as simple as obtaining a death certificate. They automatically become a complete outsider to the immediate family.
Advance Health Care Directive and Visitation Agreement
An Advance Health Care Directive sets forth who makes medical decisions for you if you are incapacitated. If your fiancé or significant other is not named as your Agent under your Advance Health Care Directive (and since they are not related by blood or marriage), he or she will not even be allowed any access to you in the hospital (they are legally a stranger). For that reason, a simple Visitation Agreement will permit your significant other to visit you in the hospital. If you choose to name him/her as your Health Care Agent – they will also have the ability to make medical decisions on your behalf should you become incapacitated, and they can be granted access to medical information under a HIPPA Release that you sign.
Before you say, “I do,” say, “Let’s get our estate plan in order.” At Law Offices of Maria N. Jonsson, PC, we’re ready to help you prepare for your future as you begin a new chapter in your life. Reach out today to get started — (310) 935-0706.