Beloved actor and comedian Robin Williams committed suicide in August and since his death a fight has erupted between Williams’ third wife and three of his children from a previous marriage over who has the right to some of Williams’ personal belongings.
Although Williams’ estate is worth millions of dollars, his case still provides a valuable lesson on the importance of drafting strong and detailed asset defenses such as prenuptial agreements.
What does a prenuptial agreement cover?
A number of things can be included in a prenuptial agreement, including division of property, ownership of the marital home, division of debt, finances during marriage, and the state under which the prenuptial agreement applies.
A prenuptial agreement is not allowed to regulate issues relating to child custody, visitation, and child support.
Who needs a prenuptial agreement?
No one expects their marriage to fail, so talking about a prenuptial agreement can be uncomfortable and there is a perception that it is a harbinger of divorce.
But statistically, about half of marriages end in divorce and those numbers are even higher when it’s your second or third marriage. In many cases, not signing a prenup can be downright irresponsible.
Here are some scenarios where it might be wise to consider a prenuptial agreement:
- If you or your spouse are bringing property into the marriage. Although some states delineate between separate and community property, assets can become commingled during marriage and it is difficult to argue that the separate property didn’t become marital property.By signing a prenup, you can clearly outline what each of you are bringing into the marriage.
- If you have kids from a previous marriage. If you forgo signing a prenup, your state’s laws will determine how your property is divided in the event of your death and your spouse will likely be entitled to many of your assets.By signing a prenup, you can ensure that upon your death your property that you want to go to your children passes to them rather than transferring to your current spouse.
- If you are a business owner. A prenup can outline how much a business is worth at the start of your marriage and also clarify that it is your separate property.In addition to ensuring that you’ll maintain control of the business in the case of divorce, this can also ease concerns your business partners might have about what would happen to the company should your marriage end.
- If you are marrying someone who is in significant debt. A prenup can help you avoid being held responsible for that debt load.
- If you earn significantly more money than your partner. A prenup can safeguard you in the event that your spouse is seeking a monetary benefit.
Are prenuptial agreements always recognized by courts?
Prenuptial agreements are recognized in all 50 states, but they can be challenged and courts do sometimes invalidate prenups.
In Georgia, courts use what is called a Scherer Test to determine if the agreement should be enforced. This test is based on three factors:
- Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of marital facts?
- Is the agreement moral and conscience of both parties?
- Have the stipulations in the agreement changed during the course of the marriage?
Other important factors when considering a prenuptial agreement.
As is the case when drafting any sort of legal document, it is crucial to be as clear and detailed as possible.
Robin Williams actually did have an estate plan, including a prenup and a trust for his kids, but some personal items were not listed on the documents, which has resulted in the current dispute.
One of the reasons prenups are so effective is that they can protect nearly every kind of asset. So don’t hesitate to make them highly personalized.
It is possible to write your own prenup, but it is a good idea to hire a professional attorney who is familiar with your state’s divorce laws to guarantee that the agreement includes the necessary language to make it enforceable.
When you’re preparing for marriage, discussing what would happen in the event of divorce is understandably the last thing you want to do.
But writing a prenuptial agreement doesn’t mean you have doubts about your marriage’s sustainability. It simply means you’re both mature enough to have an honest, open discussion about something that can lead to fewer financial problems for you and your loved ones down the line.
