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Safeguarding Your Child’s Inheritance in a Divorce

By DiBella Law Offices on December 28, 2020

child with sad expression during divorce

Entering into a new marriage when you have children can be a trying process. No matter their ages, your children may have bitter feelings about your future spouse or this new stage of your life. But beyond their personal feelings, you may be worried about their financial future. Marriage merges all of your assets and property with your new spouse’s. This means that anything you may have wanted to leave to your children could be claimed by your spouse in a divorce or if you pass away. While this shouldn’t stop you from getting married, there are certain steps you should take to protect your child’s inheritance.

When Is Inheritance Marital Property?

We can accumulate a large amount of property and assets as we age, ranging from family homes to dream cars to family heirlooms to stocks. Many of us hope to pass these items onto our children down the line, either to help them have a brighter financial future or to keep certain assets in the family.

Sadly, these plans can be put in jeopardy if you have children from a previous relationship and choose to get married. Under Massachusetts laws, all of your assets can be considered marital property when you get married. That means that anything you planned on setting aside for your children could be split between you and your spouse if you ever got divorced.

Even if you do not get divorced but end up passing away unexpectedly, your spouse will have far more control over your property and assets than your children unless you have certain legal documents drafted, like a will or trust. For children you have with your new spouse, your spouse will likely pass on your assets to them, but you cannot be sure with children from previous relationships.

What Are My Options?

There are two ways to secure your children’s inheritance for them: a premarital agreement and a trust.

A premarital agreement or “prenup” can outline which assets you would like to keep separate from your marital assets when you get married, allowing you to tuck away certain property for your children. Your future spouse can do the same, effectively making sure that you are both financially secure if you ever get divorced.

However, premarital agreements are not foolproof and can be challenged in court if they are considered unfair or unreasonable. That is why the second solution is often more reliable and a better option when you are trying to protect a child’s inheritance.

Creating a trust allows you to set aside any property you wish to leave to your children upon your death, their 18th birthday, or other such conditions. If you create a trust before you get married, then all the assets you designate for your child will be protected from property division in a divorce. While a will can also be used to outline how your assets should be divided, they are often more contested than a trust.

If you need assistance preparing a premarital agreement or determining the best option to protect your child’s inheritance in the event of a divorce, reach out to a Methuen family law attorney at DiBella Law Offices, P.C. We can review your situation and explain all of your options. In addition, if you wish to draft a premarital agreement, we can guide you and your future spouse through the process. To schedule a free consultation, call our office at (978) 327-5140.

Posted in: Divorce