A Case Study: Postnuptial Agreements in Estate Planning

Christopher J. Mueller

I recently met with new estate planning clients who moved to Indiana from New Mexico about two years ago. It started as a straightforward consultation for a married couple in their mid-70s: A first marriage for both spouses (going on 50 years!), they had two children together, and they have one grandchild. As we began a more in-depth discussion about their assets, I learned that most of their net worth was titled in their individual names — not jointly. For a long-existing first marriage hailing originally from the Corn Belt, this circumstance is a cultural outlier. Practice tip: the most prudent practice when you encounter any outlier is to ask, “Why?” and document the client’s answer. 

In this instance, Wife answered that she was raised to be fiercely independent and takes pride in her ability to provide for herself. Husband chimed in that he has always admired and supported Wife’s independence. These character traits also serve as the basis for both clients’ desire to leave their individually titled assets to their children upon their death, effectively disinheriting the surviving spouse. 

 Of course, this couple’s wishes are inconsistent with certain rights provided to a surviving spouse in the deceased spouse’s estate. After exploring the client’s reasoning for limiting any bequest to the surviving spouse, I described the rights provided to the surviving spouse under Indiana law. 

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