Prenups Expand Beyond Divorce as 53% of Americans Under 45 Sign Them

Q: Why might a sudden illness render your traditional estate plan useless without a prenup?

A sudden illness can upend a traditional estate plan because wills and even many trusts mainly control what happens at death, not who can act or what assets can be used while you are alive but incapacitated. Without a prenup, state law may give a spouse powerful default rights over property and support, and those rights may not match the plan you intended for children from a prior relationship or other heirs. Lawyers say incapacity is the stage many couples forget. If one spouse needs expensive long-term care, assets can be spent down in ways the family never planned. A prenup can define which property remains separate, which is marital, and what funds may be used for care, helping prevent the entire estate from being drained before intended gifts are made. A traditional estate plan can also fail in practice if it is not paired with the right incapacity documents. A will does not authorize someone to manage finances or make medical decisions during illness. Without durable powers of attorney, healthcare directives, and HIPAA authorizations, even a spouse may lack clear authority, forcing a court guardianship or conservatorship. The larger risk is conflict between documents and default law. A spouse’s statutory rights, beneficiary designations, and property titles can override a will. A prenup is the tool that can waive or limit some of those spousal rights in advance, but it still must be coordinated with wills, trusts, powers of attorney, and beneficiary forms to work.

1 articles · Updated · USA TODAY · Aug 23

53% of engaged or married Americans under 45 have signed a prenup, up 11 percentage points from 2022, as lawyers increasingly use them to plan for death and incapacity rather than divorce alone.
State laws can give surviving spouses automatic claims that override a will and reach up to half an estate, so prenups are being used to waive rights such as homestead, elective share and family allowance.
In incapacity cases, prenups can define separate versus marital property and set rules for paying for care, helping prevent an estate from being depleted before intended gifts are distributed.
Wills and powers of attorney still remain necessary because prenups do not transfer assets, name decision-makers or appoint guardians; lawyers say all documents must be coordinated and updated as laws, finances and family circumstances change.