Ever worried about who will take care of your kids if you and your spouse die? It’s an unsettling thought, for sure. You may think, “Maybe I can just put it in my postnup—I’m getting one anyway!” And while it’s a good idea, it’s generally not legally the right choice. Guardianship provisions are better placed in a will or standalone document. Let’s talk about this important dichotomy of postnups and guardianship, so you understand what next steps you should take to protect your children.
Understanding what a postnup actually is
First things first—understanding what a postnuptial agreement (postnup) is. A postnup is a contract between two spouses while they’re married and intend to remain married. It clarifies financial obligations between the spouses, protects each person’s assets, and addresses certain matters upon divorce. People generally include clauses about property division, spousal support, inheritances, and business ownership in their agreements. Generally, most states say that you cannot include matters about child custody or child support in a postnup because it is not a matter for parents to decide years before a theoretical divorce—instead, it should be based on the child’s best interests.
People typically get postnups because they either missed the deadline to get a prenup, they had some marital problems, or they had a major change in finances (think: sold a business, received a large inheritance, etc.).
Guardianship: Legal basics
The process of appointing guardianship is triggered by the death of both parents of a minor child. Appointing legal guardianship of minor children can be a challenging analysis for a court when there are no wills or other documents specifying how the parents wanted guardianship to go. Typically, courts do give weight to parents’ wishes if they appoint guardianship in a document, such as a will. However, a court is still allowed to override those wishes if it is not in the best interests of the child. Generally, the factors that a court considers are the parental fitness of the guardians, the child’s wishes, the child’s specific needs, etc.
Can you put guardianship provisions in a postnup?
Generally, no. It’s not a good idea to appoint guardianship in a postnuptial agreement. Why? There are several reasons this may not make sense.
Postnups can be shakier (legally)
Postnups are a relatively newer legal concept, and some states are slower to accept them as enforceable documents. Depending on your state, your postnup may be harder to enforce or be relied on by a court than other tried-and-true documents.
Issues with negotiations
There’s a risk that guardianship provisions could become bargaining chips, where one spouse agrees to a less-than-ideal arrangement in exchange for more favorable financial terms within the postnup agreement. This raises concerns about whether such agreements truly reflect the parents’ wishes.
Change of circumstances
If a postnup is created during marital turbulence, the theoretical provision about guardianship may no longer apply years later. Perhaps the couple divorced and now the joint decision of guardianship has changed. For example, if, while still married, one person’s sister made sense, but after the divorce, there is major tension between said sister and one of the parents, this may not be the best guardianship option anymore.
Alternative methods for appointing guardians
The tried and true way of appointing guardianship is through a will or a standalone document. You can create a will and add provisions in there about who you want to have guardianship over your minor children should you pass away. People generally appoint a few backup guardians as well, in case the first choice isn’t able to take on the responsibility.
In addition, you can always create a standalone guardianship document whose sole purpose is to appoint guardianship. This can be done with online companies such as Trustie, an online platform that allows you to create guardianship standalone documents.
And don’t forget to talk to these potential guardians about your wishes. Make sure they are fully in the loop and aware of where you keep your guardianship appointment documents.
The bottom line
Guardianship provisions in postnups are generally not enforceable. Postnups are shakier legal documents that are meant to outline financial matters between the couple during the marriage and in divorce. It’s generally not the place to talk about children. The better route is to put your guardianship provisions in a will or standalone guardianship document. Ultimately, getting guardianship set up for your children in a way that you feel comfortable with is a smart way to protect your kids and your peace of mind.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
0 Comments