Wills and Estate lawyers carefully ensure that Wills, Powers of Attorney and the like are in place in case of death. But rarely is anything put in place in case the parties separate, which happens to over 50% of relationships. Fortunately, the only document required is a prenup (Binding Financial Agreement).
Public perception is that they are not worth the paper they’re printed on. That is true of those that fail. Prenups are usually set aside as legal advice was not given properly. The solution is obvious. Most Agreements are complied with and Court Proceedings avoided.
The easiest and most useful Prenup is for a Blended Family. Both parties have assets they want to leave to their respective children. Both understand what the Agreement is meant to achieve. Further, it can be executed during the relationship as a Nuptual Agreement.
The Prenup can recite the parties wishes in their Wills. Although death before a separation means that the Agreement is not enforceable, expressed intentions in a Prenup are persuasive evidence if a Family Provision claim is made. Importantly, because both parties must obtain independent legal advice on the Family Law ramifications, it follows that independent advice on Family Provision claims is provided.
If your parents have separated and repartnered, your inheritance is at risk if they get divorced. Commonly, the lament is “but we always kept our assets separate”. Verbal agreements are not enforceable. Unless there is a Prenup, all assets of both parties are divisible by the Family Court. Family Trusts and loan agreements can be pierced. Inherited assets are also included in the mix. The only protection is a Prenup. The family will appreciate it, although this of itself is not likely to satisfy a feral 15-year-old step daughter. Unfortunately, there is no magic wand. Time for a (blended) family discussion?
Peter Szabo
