What role does an estate planning lawyer play in negotiations of a marital settlement agreement? Well, there’s any number of marital settlement agreements. There are marital settlement agreements that are entered into prior to the marriage, which is a pre-marital agreement. There are some that are entered into after the marriage for the parties to address each others’ rights and their spouse’s estate. And then there are the marital settlement agreements that are entered into in conjunction with a divorce proceeding. The estate planning lawyer will want to review the agreement to verify that the spouse of your client has waived their rights to claim a portion of your client’s estate in the event your client passes away or my client passes away.
That would include the waiver of the elective share that a spouse has to take 30 percent of my client’s estate. Also, as far as homestead is concerned, they waive their right to serve as a personal representative and also the right to any property that is acquired after the marital settlement agreement has been entered into and give full authority and latitude for my spouse to leave whoever they want to their property in their will or trust. And so that’s what you’re looking for whenever an estate planning lawyer looks at the marital settlement agreement, and I usually have asked a lawyer who does domestic relations to prepare these because they are tested much more stringently or could be set aside much easier or attacked in the event there’s a divorce proceeding.
So if it could pass, it will almost always pass the test of not being able to be attacked after death. So the estate plan lawyer is interested in seeing that the spouse of his client has waived their rights in his client’s estate to allow his client to leave his assets to whomever he would like, or as an alternative to be aware of what obligation he has to provide for his spouse in his will or trust. If you have any questions, well, give me a call at 727-847-2288.