More and more spouses are executing pre-nuptial agreements prior to getting married and also executing postnuptial court-approved agreements after they get married. In Louisiana, these agreements are called “Separate Matrimonial Regime Agreements”. These agreements are particularly important because they ensure that property acquired or debts incurred during the marriage remain the separate property of the person acquiring that property or the separate debts of the person incurring those debts.
However, the execution of a pre-nuptial agreement or postnuptial agreement can create unintended consequences for estate succession purposes. It is important to remember that when a pre-nuptial agreement is executed or postnuptial agreement is executed and approved by a court, all property of the person is deemed to be his or her separate property.
If one of those persons dies (decedent) that executed a pre or postnuptial agreement and no will executed by the decedent, that decedent’s property will go to the decedent’s children or family (siblings, parents, etc) and will not go to the other spouse upon the decedent’s death.
Therefore, it is necessary for spouses that have executed pre or postnuptial agreement to consult with an experienced estate planning attorney in order to adequately plan and provide for the other spouse by written will if they so desire.