Experienced Arizona Ancillary Probate and Trust Attorney Arizona Ancillary Probate Lawyer Matthew L. Howell Attorney at Law
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Frequently Asked Questions And Answers for:

Marital Property Agreements

Marital Property Agreements

  1. WHAT IS A MARITAL PROPERTY AGREEMENT? -- Often clients who remarry want to ensure that their pre-marriage property passes to their family and (subject to certain exceptions) not to their surviving spouse. Accordingly, each spouse can sign a contract which allows them to accomplish that objective.

  2. WHAT PROVISIONS ARE TYPICALLY INCLUDED IN MARITAL PROPERTY AGREEMENTS?

    a. My premarriage property is mine and will remain so free of any ownership claim of my new spouse. The spouse owning the property will continue to have full control over that property during life and at divorce (if any) and is free to select the beneficiaries of the property at death; the other spouse (and his or her respective estate or successors) waives any claim to that property.

    b. I may make gifts to my spouse during my life or at death as I choose. The clients are permitted to make life time, or at-death, gifts to each other and to establish joint tenancy account(s) with their spouse to share mutual living expenses, etc.; at the death of one spouse the joint account usually automatically passes to the survivor of them; if there is a divorce or dissolution, the parties agree to split the account in half. It is also common that the spouse who owns the home in which both spouses are living will grant a life (or similar) estate to the non-owning surviving spouse--this may also include the right to use the first deceased spouse's furnishings; sometimes the surviving spouse is required to pay expenses to maintain the house during the time he or she is living there; when the surviving spouse's right to live in the house ends, the property is distributed to the first deceased spouse's family pursuant to his or her will or trust.

    c. Any increases in the value of each spouse's separate property will remain that spouse's separate property.

    d. Community property--For retired spouses, the spouses usually agree that community property will continue to belong to each spouse in equal shares; for income earning spouses, the spouse's may agree to waive equal community property right ownership.

    e. Full disclosure of assets and liabilities--Each spouse must make full disclosure of his/her assets and liabilities and must attach them to the agreement.

  3. IS SEPARATE LEGAL REPRESENTATION FOR EACH SPOUSE REQUIRED? -- Yes! Under the law it is strongly recommended that each spouse be represented by separate legal counsel to avoid the inherent conflict of interest between them and the problem this creates for one attorney trying to represent both of them fairly. Usually, one attorney will prepare the draft of the Agreement and send a copy to the other spouse and his or her legal counsel to review and discuss.

  4. DOES ARIZONA LAW PROVIDE FOR THESE AGREEMENTS? -- Yes! Arizona has substantially adopted the Uniform Premarital Agreement Act, being A.R.S. §25-201 through §25-205 authorizing written premarital agreements signed by both parties and effective upon the marriage; the court will enforce such agreements absent unconscionability--e.g., the party did not intend to sign it or did not have a fair disclosure of the property involved.

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