If you are asking your spouse to waive his rights to an elective share of your probate property by signing a prenuptial or postnuptial agreement, the validity of that waiver depends on several factors. At the very least, you must have entered into a valid written premarital or postnuptial agreement. A binding agreement requires that your spouse waive his inheritance rights voluntarily and without any fraud or duress. In other words, you cannot force him to sign an agreement by threatening him. You must also provide a full disclosure of your financial wealth before you attempt to have him sign away his rights to receive a portion of your inheritance. However, the financial disclosure may only be required if your spouse signs a postnuptial agreement – not a prenuptial agreement. Providing your prospective spouse a full financial disclosure may be in your best interest to avoid subsequent attempts to invalidate your prenuptial agreement. Each of you should also have separate attorneys representing your financial interests, and most courts agree that one attorney cannot represent both of you because of conflicts of interest.
Many spouses enter into prenuptial agreements if they amassed a significant amount of wealth before marriage. This often happens with second marriages or marriages that occur with older couples. To keep property separate, it may be a good idea to speak with an attorney regarding the benefits of drafting a prenuptial or postnuptial agreement to protect your separate assets.
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