Your Prenup: How Your Family Law Attorney Betrayed You

If you have a prenuptial agreement, chances are that the family law attorney who represented you betrayed you and didn’t even realize it.


I often tell clients to get a prenup if they are getting married later in life, and insist my older clients pay for their child’s prenup. And soon thereafter, much to my dismay, I see yet another prenup that unintentionally-yet-completely screws my client if his or her spouse dies unexpectedly.


Prenups serve one vital purpose: “Split Money.” There is usually a financial disparity between the parties when the couple marries, so the wealthier spouse naturally wants to protect his or her money from the other spouse’s financial grasp after a short marriage. So the prenup says who gets what if the marriage ends quickly. This makes sense since many marriages fail within 5 years, often leaving the couple with somewhat different financial circumstances than when they entered.


But what if a spouse dies unexpectedly, especially early in the marriage? Many family law attorneys automatically enter a second non-necessary aspect into the prenup regarding “Death Money” that denies the surviving spouse any of his or her spouse’s property without a Will (under “Intestacy”), an automatic spousal right to 1/3 of the deceased-spouse’s property (the “Right of Election”), and even minor-yet-important property such as the deceased spouse’s car, personal property, or small sums of cash in a bank account (known as “Exempt Property”). Basically, your matrimonial attorney just ensured you get nothing if you are in a happy marriage but unexpectedly and tragically lose your spouse.


Many family law attorneys insist a prenup must deal with both Split Money and post-mortem property. They claim that all that needs to be done is add a statement to the prenup ensuring an unexpected death will not invalidated the remaining spouse’s estate rights, or that they can include a clause stating the couple may draft a Will or Trust to supersede the prenup. And my response is “Be real guys: You rarely include an unexpected death clause in your prenups, and almost never tell your clients to draft a Will or change beneficiary forms after you get paid your retainer.”


Let’s face facts: A family law attorney is there to protect you if your spouse chooses to leave you, whereas an estate attorney is there to assist you if the unexpected occurs; one should not try to fill the other person’s role. By the time a loving couple has finished the decidedly-unromantic and taxing discussions regarding a prenup they usually have no strength left to update a Will or beneficiary forms until they have a child. Unexpected death can happen at any time, and now the prenup denies the breathed spouse of all the deceased spouse’s property. Do yourself a favor and educate your family law attorney to not automatically add a Death Money clause in your prenup.



DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.


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