If you are getting married later in life, reasons to get a prenuptial agreement

Attorney Tom Olsen: Holley, I had a person call me last week about doing his estate planning and he's a single man right now. He's got kids and he's thinking about getting married to his partner very soon. She's got her own kids and I said "Look, I highly recommend that you get a prenuptial agreement before you get signed because Florida has an elective share law and that elective share law says--"

Attorney Holley Knapik: That a spouse can elect up to 30% of the deceased spouse's estate. If you choose to not provide at least 30% in your estate planning to your spouse, they can elect that 30%.

Tom: People are surprised to hear that by the very fact of being married here in the state of Florida, you are obligated to leave your spouse at least 30% of your estate. The way around that is through a prenuptial agreement. If you're getting married later in life and you've got children from a previous marriage, she's got children from a previous marriage and you want to give your wealth to your kids, not to your spouse, and that's what people want to do later in life. You want to accomplish that goal, you need a prenuptial agreement.

Holley: You do. You can only waive that election through an agreement. Prenuptial agreement is the way to go. Sometimes I have the same conversations with clients who are about to get married and it's the second marriage. "Oh, she has hers, I have mine." If you want to keep it that way, look into getting that prenuptial agreement.

Tom: Sometimes I think they might be thinking that "Hey, you're just trying to sell me something, Tom." Guess what? We don't do prenuptial agreements.

Holley: We don't do them. No.

Tom: We have to refer you to somebody else to get that done.

Holley: We just know that in order to achieve your estate planning goals, it is necessary.

Tom: Then on the other side of the coin, occasionally we'll have a client come to us and say, "Tom, I'm married, I've got children of a previous marriage. Tom do a will for me that says when I die everything goes to my children." I tell the client, "Look I can do that for you but I'm Going to make you sign a disclaimer that tells you, that if you pass away with a will like that, I don't care what your will says, your wife can step in and say, 'I don't care what his will says. I want I'm entitled to, 30% of everything.'"

You and I have talked about that and sure enough, that client died recently and his beneficiaries were calling me. I could tell they were completely upset with me when I told them that spouse may come in and claim 30%. I could tell they were ready to-- fireworks about to go off and said, "By the way, here's a copy of the letter your dad signed where he acknowledged that I told him about this."

Holley: Exactly.

Tom: "I guess so Tom. I guess you did the best you could." You don't know this but he has passed away. We're doing his probate so this past week, sure enough, the wife has hired a lawyer. She's coming in and claiming you're elective share.

Holley: Elective share.

Tom: You can't expect people to leave money on a table.

Holley: No, absolutely not.

Tom: Human nature, they're Going to get what they can.

Holley: Get what they can and that's taking place now.

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