Premarital Agrrement

A client who is considering a second (or third or more) marriage often has more complicated estate planning needs than a single client or a client who has been married only once. A premarital agreement can be key to protecting a client's assets, but the attorney must make sure the agreement is integrated with the client's estate plan. At the National Academy of Elder Law Attorneys' 2010 Elder and Special Needs Law Annual Meeting in Orlando, Florida, earlier this year, Virginia estate planning attorney Martin J. Ganderson discussed how to plan for a second marriage and outlined the various estate planning issues that premarital agreements must take into account.

In a second marriage, a client may want his or her children, rather than the spouse, to be the beneficiary on a retirement account. Under ERISA, however, the spouse is entitled to the benefits unless he or she voluntarily waives them. A premarital agreement can address this by stating that the spouse gives up all rights to retirement accounts. Nevertheless, Ganderson stressed the importance of following up with the client after the marriage to make sure the spouse actually signs the forms waiving that right.

If the spouse remains the beneficiary of a retirement account, the premarital agreement needs to address what to do with the account in the event of divorce. The spouse can sign a form that renounces the right to the retirement plan in the event of divorce, but Ganderson cautioned to be careful how that waiver reads. The wavier should allow the owner of the policy the right to change the beneficiary as much as he or she wants without getting approval from the spouse each time.