Difference Between Pre-Nup and Post-Nup For Estate Planning Purposes

Been working with a couple out of Mandeville, Louisiana, each of which is in their second marriage. They each have children from a prior marriage and they want to keep their assets separate for estate planning purposes.

Louisiana Marriage Contract

We discussed how some couples, before they marry, sign a Marriage Contract. A marriage contract may also be referred to as a pre-nup or a separate property agreement. They typical Louisiana marriage contract keeps the assets of the spouses separate. What's his is his. What's hers is hers. There is no community property. Without a marriage contract, generally, anything acquired during the marriage through the efforts of either spouse is considered community property and is owned one-half by each spouse, even if the asset is in the name of only one of the spouses.

So, when one spouse dies and a marriage contract exists, it is real clear who owns what and it can be easier for inheritance purposes that way.

After Marriage

It gets trickier though when married couples want to treat assets as separate even though they are community. For example, a husband might say, "I want the account in my name when I die to go to my children." Well, if there is community property in that account, then his surviving wife will have a claim to half or a portion of that account. Hence, a squabble often results between the surviving wife and the husband's children.

While it is simple for engaged people to enter into a marriage contract before marriage, it is more complicated to enter into a marriage contract after marriage. It requires a judge to approve the couple entering into a post-nuptial marriage contract, and it often requires court hearings with each spouse being represented by different counsel at these court hearings. And, a judge may not allow the couple to enter into the agreement.

So, if you're about to get married and it's later in life and each spouse has assets and children of prior marriages, it may make sense to explore whether a marriage contract is appropriate, not so much for divorce purposes, but for inheritance purposes.