Over the course of your marriage, your wealth will evolve. As future goals become your reality, your perspective on your wealth will shift. Before your wedding day, you will receive advice to have conversations about money and finances to get both of you on the same page. These conversations will continue through your marriage but will become more complicated as your wealth increases. There are tools and specific strategies designed to tackle postnuptial wealth conversations.
The most obvious tool is the postnuptial agreement. Broaching the subject of a postnuptial agreement gets a bad rap for being the gateway to divorce. Dissolution of a marriage is not the intention of a postnuptial agreement. Instead, the agreement a transparent plan which lays out the division of assets in the event the marriage heads south.
A change typically prompts the timing of a postnuptial agreement. Whether it be one spouse who received an inheritance or leaving the workforce, or one suddenly experienced significant growth in their career. The agreement protects both sides. The appropriate legal guidance for the creation adds third-party neutrality to what can be an otherwise emotional debate. When the timing is tied to a change with an approach to protect both sides, these agreements can be beneficial. When one party suggests an agreement with malintent and the marriage is already rocky, of course, the agreement will be far from civil.
To create a postnuptial agreement, contact an attorney. In this case, avoid the online DIY services that are available. The purpose of the agreement is to avoid contention in the future. Taking the economical route here leaves you exposed to significant potential headaches in the future. Your attorney will guide you through the creation process and ensure that you draft the document in agreeable terms for all parties. Questions will come up; this can be a delicate conversation; it is invaluable to have a neutral third party to serve as a sounding board with expertise.
There is homework you can do before even meeting with an attorney. Create a running list of your assets, then assign who would retain ownership of those assets. For any debatable items, leave the assignment open until you meet with the attorney. The assets on your list should include physical assets, cars, homes, art, and investment accounts as well.
As you do with your financial plan and your estate plan, revisit your postnuptial agreement regularly. As time passes, intents may change; your attorney should update the document to reflect both of your current wishes.
What will happen after you’re gone
As your wealth grows, your legacy begins to be a consideration. In addition to your standard estate planning documents such as your will and POA, a trust may become appropriate. Postnuptial trust planning is complicated and should be evaluated on a case by case basis. Marital trusts help protect assets and reduce tax consequences by creating a set of instructions for assets to be placed in a trust after one spouse dies. Once the second spouse passes, the trust is passed on to the named heirs. Marital trusts are also known as ‘A-B trusts’.
One of the primary goals of the ‘A-B trust’ structure is to reduce tax consequences. However, due to the tax law change that now allows for portability of the estate tax exemptions between spouses, the point is moot for most couples. Thanks to the Tax Cuts and Jobs Act, the current IRS estate and gift tax exemption is $12.92 million per spouse (2023) and $25.84 million per married couple (2023). The exemption means that you may leave assets to your heirs up to those limits and pay no federal estate or gift tax. The limits may be reduced back to the $5 million limit once the tax exemption sunsets in 2025.
If control is a concern, other trust planning options may be appropriate. A qualified terminable interest property (QTIP) is similar to the ‘A-B trust’ structure. It is triggered once the first spouse passes. The QTIP allows you to grant income to the surviving spouse and name specific beneficiaries for assets and property. The tax consequences are delayed; the trust assets are not taxed until the second spouse passes. Again, for most couples, currently, the tax planning is less of a concern due to the TCJA; instead, the control is the primary driver for using a QTIP.
The ability to name separate beneficiates, the spouse receiving the income and the remainder beneficiary, with access to the specific assets, is precious in blended families. The remainder beneficiaries may be children from a prior marriage for example.
The control of the disbursement of assets is because the QTIP is written as an irrevocable trust. Once it is in place, it cannot be changed. Therefore, as the first spouse to pass, you can ensure your wishes are carried out. The irrevocable control is a critical difference between the QTIP and the ‘A-B trust’. With the ‘A-B trust’ the surviving spouse may select who the remainder beneficiaries will be once they pass.
Besides ‘A-B trusts’ and QTIPs, there are other types of irrevocable and revocable trusts that may better fit your needs. For example, if charitable giving is one of your goals, a CRAT or a CRUT would allow you to name a charitable organization as a beneficiary within the trust instructions. Strategic giving is another way to plan the distribution of your wealth post-nuptials.
Postnuptial wealth planning is a complicated and ongoing process. Ultimately, you must determine your goals and objectives for your wealth. You can evaluate the necessity of a postnuptial agreement or trust planning through comprehensive financial planning and a trusted attorney’s advice. There are many trust strategies; whether a QTIP or another type of irrevocable trust is right for you depends on your unique situation and your intentions.
If you know someone who is considering what strategies are available to protect their wealth post-nuptials, please share this blog with them.