Is a postnup agreement essential before making a will? 19 Answers as of October 07, 2013

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O'Keefe Legal Services, L.L.C.
O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
In Maryland, there is no requirement for a postnupial agreement to creating one's will, so it is not essential if you mean necessary.
Answer Applies to: Maryland
Replied: 10/7/2013
Stephens Gourley & Bywater | David A. Stephens
It is not essential.
Answer Applies to: Nevada
Replied: 10/7/2013
Sebby Law Office
Sebby Law Office | Jayne Sebby
A post nuptial agreement usually arranges for the distribution of each party's assets individually and the couple's jointly held assets should they decide to divorce or one or the other of the parties dies. A postnuptial, which is essentially a contract between the parties will impact the terms of each party's will. However, there is no requirement to establish a postnuptial prior to writing a will.
Answer Applies to: Nebraska
Replied: 10/3/2013
Peters Law, PLLC
Peters Law, PLLC | Mark T. Peters, Sr.
No, unless there are issues with mixed families and separate property that will cause the will-making process to be easier.
Answer Applies to: Idaho
Replied: 10/3/2013
Danville Law Group | Scott Jordan
No, it is not required. A postnup agreement (or post marital agreement) is designed to designate certain items (personal or real) as separate or community property. Usually this is done in the event of a divorce. A will is designed to name a beneficiary of certain real or personal property after the death of the creator of the will. Therefore, depending on your particular circumstance, you will need one or the other.
Answer Applies to: California
Replied: 10/3/2013
    Gates' Law, PLLC | Thomas E. Gates
    No. A postnup deals with matters during a divorce, e.g., party is still alive. The will deals with the estate after death.
    Answer Applies to: Washington
    Replied: 10/3/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    No, as you can make reference to the postnup agreement benefits you will be receiving in the distribution provisions of the will. Do not delay, as you do not know what tomorrow will bring.
    Answer Applies to: California
    Replied: 10/3/2013
    Frederick & Frederick PLC | James P Frederick
    No. A post nuptial agreement is relatively rare. If your intent is to exclude your spouse in the Will, however, a post-nuptial agreement would be a good way to do that.
    Answer Applies to: Michigan
    Replied: 10/3/2013
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    No. The only situation in which it might be helpful is if you intended to disinherit your spouse and your spouse was willing to agree to waive any statutory right to your estate the spouse would otherwise have regardless of the provisions of the Will.
    Answer Applies to: Minnesota
    Replied: 10/3/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    If you are not leaving assets to the spouse that she or he would be entitled to, it probably is. Also look at forced share/widow's election rules. Best to address this with an estate planning attorney. If it is separate property, a trust may work in lieu of a post nuptial. Seek legal advice. Do not try this on your own. Good luck. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
    Answer Applies to: Nevada
    Replied: 10/3/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Not only is it no essential, it may not be valid. Some people say that a "post-nuptial" is not valid, as it is not supported by consideration. Reading between the lines (not easy, with a one-line post) I wonder if you mean a testamentary agreement, between two spouses who each have children from other relationships. Legally, it is not required to make a will valid. However, in some circumstances it is essential, in the sense that the estate plan won't work without it.
    Answer Applies to: Oregon
    Replied: 10/3/2013
    Donald T. Scher & Associates, P.C.
    Donald T. Scher & Associates, P.C. | Donald Scher
    No. However, if you undertake certain obligations under the prenup, you may want to coordinate those obligations with the provisions of your will.
    Answer Applies to: Arizona
    Replied: 10/3/2013
    James Law Group
    James Law Group | Christine James
    No, but if you need to confirm ownership of assets it is a good idea to do at least at the same time. At James Law Group we make every effort to respond to you quickly and efficiently. This means we may be responding to you from a mobile device. As you know, responding on these devices can result in typographical errors that my otherwise not occur. In order to provide this extra service, please be aware of this and excuse any errors that may be caused by responding in this forum. The content of this message is protected by attorney-client privilege.
    Answer Applies to: California
    Replied: 10/3/2013
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    That is a good question. No. Most married couples do not create prenuptial or postnuptial agreements (although more couples are doing so now than in the past). A Will is not dependent upon the presence of either. However, a postnuptial agreement can be included as part of an estate plan to help determine the extent to which one or both spouses is receive income. It can help determine who is responsible for certain debts and it can also state the manner in which property is to be divided or distributed upon divorce - or (like a Will) upon the death of a spouse. Certain provisions of a Will or of beneficiary designations may require a waiver of spousal rights in order to be effective. In those cases, a properly executed prenuptial or postnuptial agreement may provide the mechanism for the spousal waiver. If you intend to make a postnuptial agreement a part of your estate plan be mindful to make a "full disclosure" of income assets and debts, in order to withstand a claim of fraud, misrepresentation, or duress. Also, you and your spouse should be individually represented by your own lawyer prior to signing the agreement. Good luck with your Estate Planning.
    Answer Applies to: Indiana
    Replied: 10/3/2013
    Arthur H. Geffen, P.C.
    Arthur H. Geffen, P.C. | Arthur Geffen
    If you are going to sign one then it is better to do it before you do a will so it can be referenced in the will.
    Answer Applies to: Texas
    Replied: 10/3/2013
    Gottlieb & Goren, P.C.
    Gottlieb & Goren, P.C. | Aaron W. Goren
    No, but your spouse has certain rights to your property no matter what you put in your will, unless your spouse agrees in writing to give them up.
    Answer Applies to: Michigan
    Replied: 10/3/2013
    R. Steven Chambers PLLC | R. Steven Chambers PLLC
    It depends on your wishes. If you have children from a previous marriage and you and your new spouse have an agreement about division of property that each of you brought into this marriage then a post-nuptial agreement would be advisable. The reason is that without some sort of agreement the wife is entitled to a minimum share upon death of the husband (and vice-versa), notwithstanding what a will says. A post-nuptial agreement will avoid that happening.
    Answer Applies to: Utah
    Replied: 10/3/2013
    Victor Varga | Victor Varga
    No, it's for before you get married.
    Answer Applies to: Maryland
    Replied: 10/3/2013
    Neil J. Lehto, Esq.
    Neil J. Lehto, Esq. | Neil J. Lehto
    No. The advisability of a post nuptial agreement rests on two considerations: (1) a wide disparity of assets and earning power between the parties, and (2) agreement between the parties that these financial differences should be adjusted between them before a divorce, disability, death or other significant event.
    Answer Applies to: Michigan
    Replied: 10/3/2013
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