Estate Planning is the intersection of many different areas of the law. Of course, an Estate Planning attorney should understand Probate and Trust Law. And, Estate Planning attorneys must understand Estate & Gift taxes, at a minimum. Of course, it is generally expected that they will have somewhat broader knowledge of Tax Law. On the other hand, there are some areas of the law that we certainly are not expected to understand. Criminal Law is a good example of this.
Arguably, Prenuptial Agreements fall in a grey area. They certainly can affect traditional areas of Estate Planning, such as the disposition of assets at death. But, they also tread on traditional areas of Family Law, such as the disposition of assets upon divorce.
The requirements and validity of Prenuptial Agreements vary significantly from state to state. What would work in one state will not work in another.
For example, if you were doing a Prenuptial Agreement for someone, how much information do you have to give to the intended spouse? Must you reveal “expectancies?” The answer depends on the state.
Must both sides be represented by counsel? The answer depends on the state.
There’s a long list of such items that vary by state. And, the requirements in practice may differ somewhat from what a cursory reading of the law might reveal. Certainly, an Estate Planning attorney must learn such things before being able to practice competently in the drafting of a Prenuptial Agreement.
Do most Estate Planning attorneys draft Prenuptial Agreements? Some attorneys have told me that they do so routinely. Others do not feel comfortable doing so.
What about you? Do you think Estate Planning attorneys should draft Prenuptial Agreements? Do you draft such agreements?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Ave Suite 300
San Diego, CA 92123