Louisiana pre-nup

Estate Planning Issues That Arise When a Couple Gets Married Later in Life Bringing Children and Assets into the Marriage

It's common these days for two people to get married later in life after getting either divorced, or outliving their first spouse. It's also common for those spouses who get married later in life to have adult children, and they also often bring significant assets into the marriage. This post addresses some of the estate legal issues that are involved when spouses get married later in life.

When no advance legal planning is addressed prior to the marriage, problems often arise after the death of one of the spouses. It's common for there to be confusion regarding who owns the marital assets. Do they belong to the husband? Do they belong to the wife? Which assets are community property? Is there any community or separate debt? Are there any reimbursement issues? These problems get compounded when the people having the discussioin/argument are the surviving spouse and the children of the first spouse to die.

Basic Louisiana community property law dictates that anything acquired during the marriage through the effort or skill of either spouse is community property. Some spouses mistakenly believe that if these "earnings" remain in the name of the spouse who earned them, then those assets would remain the separate property of that spouse.

Basic Louisiana community property law also dictates that the natural and civil fruits of the separate property of a spouse are community property. Again, many spouses mistakenly preseum that if a spouse has "separate" investments, then the interest and dividends that those "separate" investments produce must be separate property - not so.

Some spouses, particularly those with income producing assets, will sign a declaration reserving the fruits of their separate property as separate property. But this cannot be done without their spouse knowing about it. A copy of the declaration must be provided to the other spouse, and the declaration must be filed in the appropriate public real estate records.

Many couples who get married later in life, each of whom has children of their own, and each of whom have significant assets they want to "protect," sign a matrimonial agreement, also known as a "pre-nup," "marriage contract," or "separate property agreement." Couples who do this typically attempt the modify the default community property rules that exist in Louisiana when a matrimonial agreement is not in place.

Many matrimonial agreements provide that each spouse will have their own separate assets and debts, and there will be no community property. This can make it easier to determine "who owns what" when one spouse dies. When done right, there are no community property issues, community debt issues, reimbursement issues, or other claims that the estate of the first spouse to die might have against the surviving spouse. These agreements are typically signed by both spouse prior to the marriage, and they must be recorded in the appropriate public real estate records.

And then the next issue that must be addressed after the above is addressed is: How to leave our respective estates to each other and our children or other heirs - the will and trust discussion.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney


Phone: (225) 329-2450

Difference Between Pre-Nup and Will or Trust

I was working with a couple recently. Each spouse had children from a previous marriage, and they wanted to make sure their estates were set up the right way to protect themselves, their spouse, and their children - the right way. They knew there was the potential for conflict when they die because the sets of children did not know each other very well, and we all know what happens when people who do not know each other well have to share an inheritance!

The couple had a pre-nup from before they got married about 20 years earlier. Note that pre-nup can also be referred to as "Marriage Contract," or "Separate Property Agreement." They also had old Wills. Some of the provisions of the Wills were in conflict with what the pre-nup stated.

This led me to want to educate you about the difference between the two. In general, the purpose of the pre-nup is to determine who owns what. In the typical pre-nup when spouses get married later in life, and they each have their own children, the spouses will want to deviate from the presumed community property regime, and they will want to keep everything as separate property - what the husband has and what the husband earns during the marriage is HIS, and what the wife has and what the wife earns during the marriage is HERS. So it is real clear who owns what when one of them dies (or, if they get divorced) - no community property. The pre-nup is not the place to say who gets what when you die. In Louisiana, each party is represented by a separate attorney, each party signs the pre-nup, and it is typically recorded at the courthouse. It's a contract.

The Last Will, or the Revocable Trust, dictates who gets what when you die, and who is in charge of the administration and distribution. The WIll or Trust is not the place to try to control what is separate and what is community. Sure, your assets may retain their community or separate property status when placed in a trust, but the WIll or Trust should merely be used as a vehicle to dispose what you own, not declare what you own with your spouse.

Too many times we see conflict between the provisions of the Marriage Contract and the Last Will or Trust. You are asking for trouble if that is the case. Make sure you understand the role of each so that there will be a simple and quick estate administration when you die, with everyone (and the lawyers) being clear on everyone's rights.