CLEW Publications

Drafting Marital Property Agreement Provisions: Estate Planning Considerations and Related Marital Property Issues

by David W. Reinecke

1994 edition, 104 pages, $35.00

The Marital Property Act gave estate planning practitioners an entirely new responsibility in estate planning: marital property agreements. Now,virtually every estate plan for a married couple should include some type of marital property agreement. Since January 1, 1986, marital property agreements have become the rule rather than the exception.

This book provides lawyers with guidance concerning what can be the most complicated and difficult aspect of estate planning drafting marital property agreements - death disposition clauses.

The book discusses drafting techniques in the context of six typical fact situations. Practitioners will be able to evaluate clients as being in one of the defined fact situations, and then incorporate into a marital property agreement the detailed drafting provisions from the Appendix which are applicable for such situations. In some instances, a particular client may fall somewhere in between two defined groups. The book contains suggestions for blending portions of the various forms provided to come up with a specific "hybrid" form tailor fit for the client's needs. In either case, the forms in the Appendix provide the resources required by the practitioner to complete the project.

The book also includes a detailed discussion of tax concepts relating to the Marital Property Act and a discussion of the Act's provisions relating to various postmortem elections and other concepts important in estate administration.


David W. Reinecke is a partner with Foley &Lardner in Madison, Wisconsin. He is a lecturer at the University of Wisconsin Law School and teaches courses dealing with estate planning, probate administration, and taxation of trusts and estates. He is a Fellow of the American College of Trusts and Estates Counsel and a member of the board of directors in the Real Property, Probate, and Trust Law Section of the Wisconsin State Bar.

This publication contains the following text and sample forms:

Chapter 1: Application of the Marital Property Act to Death Transfers

Rules Regarding Testamentary Transfers of Marital and Nonmarital Property

  • Marital Property and Individual Property
  • Deferred Marital Property
  • Mixed Property

Nonprobate Testamentary Transfers and Marital Property Drafting Considerations

  • Survivorship Marital Property
  • Joint Tenancy
  • Revocable and Irrevocable Trusts
  • Will Substitute Agreements
  • Life Insurance

Unintended Testamentary Dispositions

Chapter 2: Marital Property Agreement Provisions for Death Dispositions

Drafting Techniques in Typical Fact Situations

  • Long-Standing Relationship
  • Children Outside Marriage
  • Double Income, No Kids
  • Traditional Marriage
  • Elderly Couple
  • Large Disparity in Wealth Acquired Outside the Marriage

Are Death Provisions in Marital Property Agreements"Contractual Wills"?

  • Enforcement Implications
  • Gift Tax and Death Tax Implications
  • Application of Troubling Case Law

Chapter 3: Alternative Testamentary Dispositions by Written Instruments

Will Substitute Agreements

  • Gift Tax and Death Tax Considerations
  • Problems with Will Substitute Agreements

Chapter 4: Postmortem Marital Property Elections and Remedies

Deferred Marital Property Election

  • Assets Subject to Election
  • Bar to the Election

Augmented Marital Property Estate Election

  • Differences from Deferred Marital Property Election

Equitable Election

  • Conflict with Deferred Marital Property Election
  • Unintended Forced Elections
  • Intentional Forced Elections

Miscellaneous Postmortem Marital Property Elections

  • Spousal Allowances
  • Property Transferred in Fraud of Surviving Spouse
  • Gift Recoveries
  • Surviving Spouse's Option to Purchase Life Insurance Policy
  • Qualified Disclaimers

Sample Forms and Provisions: Insurance Marital Property Agreement; Authorization to Divide Marital Property on Basis of Aggregate Value;Specific Bequest of Marital Property Titled in Spouse's Name; Life Insurance and Deferred Employment Benefits Classified as Individual Property; Death Provision of Marital Property Titled in Spouse's Name; Death Provision; No Provisions for Death Disposition to Spouse;Will Substitute Agreement; Spouse's Elective Rights; No Forced Equitable Election.

Publications Order Form

Lock Icon