Postnuptial Agreements Are Now An Estate-Planning Tool For Ohio Practitioners

• Jurisdiction: Ohio,United States
• Law Firm: Brouse McDowell
• Subject Matter: Family and Matrimonial, Family Law, Divorce, Wills/ Intestacy/ Estate Planning
• Author: Ms Brandi L. Doniere
• Published date: 24 May 2023

On March 23, 2023, Ohio joined 48 other states in allowing married partners to enter into postnuptial agreements that alter their marital legal rights. The newfound legality of postnuptial agreements increases the tools available to both domestic relations and estate planning attorneys. Such agreements will undoubtedly be useful for settling potential family law issues, as spouses can now modify outdated prenuptial agreements to account for changed circumstances, and married couples can divide their assets and agree to financial support if they should ever separate or divorce.

Postnuptial agreements will also prove incredibly useful for estate planning. Spouses can provide themselves and their heirs certainty and control over the fate of their assets and wealth upon their death by declaring assets to be either marital or individual separate property in an enforceable postnuptial agreement. Clearly assigning ownership of an asset that would otherwise be considered marital property to only one spouse in an enforceable postnuptial agreement can preclude a future ownership claim by the other spouse. For example, a wife who inherits antique earrings may want to ensure that the jewelry stays in her family after her death. This objective can be accomplished with a properly worded postnuptial agreement declaring the earrings to be separate property belonging to the wife.

A postnuptial agreement can also be used to disclaim a surviving spouse's statutory right to the deceased spouse's estate. This aspect of such agreements will be particularly useful for families with children from prior relationships. In second or subsequent marriages, one spouse is often concerned that pre-existing children will be denied a desired share of their parent's estate if the surviving spouse elects to exercise his or her statutory rights. Spouses can gain certainty that identified assets and wealth will pass to their children rather than their surviving spouse by executing a properly worded and enforceable postnuptial agreement.

Postnuptial agreements will also be an especially useful tool for succession planning of closely held or family businesses, such as a family farm. Spouses can agree that one's business interest is...