Ask the Expert: Postnup can help solve problems

My husband and I have both left our assets to our children by prior marriages. I was very concerned to read in your Jan. 13 column that no matter what my will says, under New York law my husband automatically gets one-third of my estate. Another concern: I've left my house to my son, but I know if my husband survives me, he won't want to move. Finally, I believe some family members take inappropriate interest in our estate plans. What can I do to protect my son's inheritance?

Not to worry. You can resolve potential problems with a postnuptial agreement.

Many people assume prenuptial and postnuptial agreements are just a blueprint for divorce. But more often, they're custom-tailored estate plans. The law has a one-size-fits-all estate plan: Your surviving spouse gets $50,000 or one-third of your assets, whichever is greater. But you're not bound to accept the state's plan. In a postnuptial agreement, you and your husband can waive your legal entitlement and create one of your own. For example, you could give him the right to continue living in your house for his lifetime if he survives you, even though your son will own it. (In that case, of course, the agreement also should spell out who pays for the upkeep and capital improvements to the house, property taxes and so on, while your husband lives there.)

Even if you and your husband agree on everything, you need two lawyers - one each - to create this agreement. It's not enough that you both consent to its provisions; you both must give informed consent. That way, no one can challenge the agreement after your death by arguing that one of you didn't have the benefit of independent legal advice.

The bottom line If you don't like the law's estate plan, create your own.

More info on these two Web sites: bit.ly/bd71t0 and bit.ly/aUPbcM.