Prenuptial Agreements in Estate Planning
A recent article in the Wall Street Journal discusses how more and more couples are entering into prenuptial agreements or “prenups”. Prenuptial Agreements are being utilized not only to protect one’s assets in a divorce, but as an estate planning protective measure as well.
The use of prenuptial agreements is becoming more widespread as more people are getting married later in life and have already accumulated wealth prior to entering into marriage. Moreover, marriage contracts are increasingly common in second marriages and blended families.
Under the Succession Law Reform Act Part II, on an intestacy, a surviving husband or wife receives the entire estate of his or her spouse if there are no children. If there are children, the surviving husband or wife still receives the first $200,000 of the estate and either ½ of the remainder if there is one child or 1/3 of the remainder if there are two or more children of the marriage.
A marriage contract between married spouses may contract out of the rights afforded to married spouses by Statute. However, the contract may be set aside for a number of reasons including lack of financial disclosure and duress.
Further, Part IV of the Family Law Act (“FLA”) explains what may and may not be enforceable in a marriage contract.
52. (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
(d) any other matter in the settlement of their affairs
Rights re matrimonial home excepted
(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.
Since the matrimonial home is afforded special rights under the FLA, a provision in a marriage contract attempting to limit a spouse’s rights to the matrimonial home is unenforceable.
Before entering into a marriage contract it is imperative to speak with an experienced legal practitioner to ensure that the contract will in fact assist you as an estate planning tool.
It is important to note that marriage contracts are subject to the discretion of the Court on death pursuant to the Succession Law Reform Act. In next week’s blog I will be discussing this issue further.
Thank you for reading.