Recently in Premarital and Domestic Partnership Agreements Category

September 29, 2009

Promoting a Legacy of Harmony Through Pre and Post Marital Areements

Frequently, Premarital Agreements are used to modify rights of the spouse who survives the other. Maryland's law of inheritance gives a surviving spouse the right to elect against the will of a spouse who has died. The surviving spouse's elective share varies depending on what other relatives also survive. For example, if there is a surviving adult child, the spouse is entitled to $15,000 plus one-half of the intestate estate. More details concerning the rights of the surviving spouse under various circumstances can be found in Section 3-102 of the Estates and Trusts Article

Maryland Family Law Attorneys know that one of the principal advantageous of an agreement is to clearly establish what the surviving spouse will receive and thereby eliminate the uncertainty under Section 3-102. This uncertainty arises because there is a right to organize ones affairs in a manner that keeps assets out of ones' intestate estate. One example is transferring assets to a trust during life.Doing so reduces or eliminates what the surviving spouse can claim as his or her elective share.

Maryland's highest appeals court recently upheld such a transfer in Karsenty vs. Schoukroun. Nevertheless, such a transfer can be held to be a fraud intended to frustrate the rights of the surviving spouse. Unfortunately, the Court declined to give a "bright line" test for determining when a transfer during life will be considered fraudulent. One of the six factors, "motive" of the decedent will often be in dispute and require expensive and far reaching litigation. Rather than a legacy of an expensive and bitter dispute, a Premarital or Post Marital Agreement that will create certainty and promote harmony will often be the prudent choice.

September 16, 2009

Maryland Premarital and Domestic Partnership Agreements Can Work

Many Marylanders want to know whether a Premarital or Domestic Partnership Agreement is right for them. These agreements can serve a variety of purposes depending on individual facts and circumstance. They can be grouped into several categories, frequently encountered by family law attorneys. The following list is by no means exhaustive.

For more mature couples who have acquired both assets and children prior to their new relationship, the purpose is often to protect assets for the children of prior relationships, while making appropriate provisions for the new spouse. For couples with substantially different levels of financial resources, the goal may be shielding the financially stronger partner from claims for marital support in the event of breakup. Younger couples, often already living together, may view marriage as the next logical step but want to minimize the cost and emotional turmoil of divorce should it occur. Partners who may or may not be legally capable of marriage in this state, desire to establish the ground rules for their partnership.

Although Maryland, unlike Virginia and D.C. has not adopted the Uniform Premarital Agreement Act, the courts have generally upheld such agreements. However they will not be permitted to tie the hands of the court with respect to issues relating to children, such as support, custody or visitation. There is also precedence that curtails waivers of alimony under circumstances in which denial of spousal support would be unconscionable. Nevertheless, with appropriate legal counseling, couples can confidently use these agreements to meet most of their legitimate goals. You can expect future blogs on this site to explore relevant issues in more detail.