For those whose spouse has passed away and who are considering remarriage, a Prenuptial Agreement can assure that your estate will go to your children.
If your spouse has passed away and you are contemplating a second marriage, you may want to consider making a Prenuptial Agreement. With a Prenuptial Agreement and proper Wills, you can set out the duties and obligations that you and your new spouse will have upon death or divorce and assure that the property that you bring into the marriage will pass to your children.
A Prenuptial Agreement will typically include the following provisions:
- A disclosure of each party’s assets and income.
- A waiver of claim against each other’s assets.
- How daily expenses are to be paid.
- Whether the parties will file joint or individual income tax returns.
- Whether the surviving spouse may continue to live in deceased spouse’s home.
If you do not have a Prenuptial Agreement or a Will, upon your death your property will pass under the intestate laws of Idaho. Idaho Code § 15-2-102 provides that the surviving spouse will receive the following share of the deceased spouse’s estate:
- As to separate property if there are surviving issue (posterity), the surviving spouse will receive one-half of the separate property and the deceased spouse’s issue will receive one-half of the separate property.
- As to community property—property that has been acquired during the marriage or separate property that has been comingled—allthe community property goes to the surviving spouse.
In addition, if you do not have a Prenuptial Agreement or a Will that provides otherwise, when you die your spouse has a right to receive $60,000 from your estate—a homestead allowance of $50,000 and an exempt property allowance of $10,000.
A Prenuptial Agreement entered into before marriage establishes property rights after marriage. When you have made your intentions clear and your estate plan is carried out, your property will go to those you have designated, not to someone your never intended.
Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.