Protecting assets in divorce doesn't have to be confusing. Learn how prenups, postnuptial agreements, trusts, inheritance, and estate planning can help protect your financial future before or during marriage.

What happens to an inheritance in a divorce? Does putting assets into a trust automatically protect them? Is a prenuptial agreement only for wealthy couples? Can a postnuptial agreement protect your family if addiction, business ownership, or financial concerns become part of your marriage?

In this episode of Doing Divorce Different, Lesa Koski sits down with Minnesota estate planning attorney Melissa Miroslavich to answer the questions many people don't realize they should be asking until it's too late.

Together they discuss protecting assets in divorce, the differences between marital and non-marital property, when prenuptial agreements and postnuptial agreements make sense, how trusts actually work, and why estate planning should be part of every family's long-term plan.

Whether you're happily married, engaged, considering divorce, or simply planning for the future, this conversation will help you better understand your options and make informed decisions.

In this episode you'll learn:

• What a prenup really does (and doesn't do)

• When a postnuptial agreement may be appropriate

• How inheritance is treated during divorce

• The difference between marital and non-marital property

• Common misconceptions about trusts

• How addiction or financial struggles can affect long-term planning

• Why mediation allows families to create customized solutions

Every family is unique, and every situation deserves thoughtful planning. This episode is educational in nature and is not legal advice. If you have questions about your own circumstances, consult an experienced attorney in your state.

If this episode helped you, please subscribe, leave a review, and share it with someone who may benefit from understanding how to better protect their family and financial future.

Timestamps

(00:00) Welcome and introduction to protecting assets in marriage and divorce

(02:15) What every couple should know about prenuptial agreements

(08:30) Marital vs. non-marital property explained

(13:45) Can inheritance stay separate during divorce?

(20:05) Trusts explained: Revocable vs. irrevocable trusts

(29:40) Real-life divorce scenario involving inherited assets

(37:20) Addiction, financial protection, and postnuptial agreements

(48:15) Divorce, legal separation, or postnuptial agreement—which offers the most protection?

(56:10) Estate planning after divorce

(1:02:45) Beneficiary designations people often forget to update

(1:07:30) Final thoughts and practical planning tips

Key Takeaways

• A prenuptial agreement is more than planning for divorce—it creates clarity, transparency, and shared expectations before marriage.
• Simply placing assets into a trust does not automatically protect them during a divorce.
• Keeping inherited assets separate is essential if you want to preserve their non-marital character.
• Postnuptial agreements can help couples proactively address financial concerns, but they have unique legal requirements.
• Estate planning and beneficiary designations should always be reviewed after a divorce or major life change.

Guest Bio

Melissa Miroslavich is a Minnesota attorney focusing on estate planning, prenuptial agreements, postnuptial agreements, business succession planning, and asset protection strategies. She helps individuals, families, and business owners create thoughtful legal plans that protect what matters most while preparing for life's expected—and unexpected—transitions.

Resources Mentioned

Melissa Miroslavich Law

https://miroslavichlaw.com

Schedule a Divorce Clarity Session

https://www.lesakoski.com/offers/2HAtaGZ6/checkout

Divorce Comeback Community

https://www.skool.com/divorce-clarity-40-8663/about

Soberlink – A Trusted Tool for Accountability in Family Law Cases

https://www.soberlink.com/divorce/family-law?utm_source=affiliatelink&utm_medium=referral&utm_campaign=lesa-koski-affiliatelink

OsteoStrong Minnesota – Bone Health & Strength

https://osteostrongmn.com/affiliate-referral-koski/

Tags / Keywords

protecting assets in divorce, divorce, divorce mediation, mediation, prenuptial agreement, prenup, postnuptial agreement, postnup, inheritance and divorce, trusts, revocable trust, irrevocable trust, estate planning, marital property, non-marital property, asset protection, Minnesota divorce, divorce planning, divorce coach, Lesa Koski, Melissa Miroslavich, family law, divorce education, financial planning after divorce, collaborative divorce

Welcome to Doing Divorce Different.

2

I'm happy to have you here,

and I'm so blessed to have

3

Melissa Mirles-Avich with me.

4

I love saying your last name.

5

It's like a hard one that

I actually think I get.

6

Speaker 2: You do.

7

You did a nice job.

8

Speaker: So, and here's the thing,

Melissa is an awesome attorney.

9

She works in Minnesota.

10

She does some family law.

11

She does estate planning.

12

Are you still doing family law, estate- I

13

Speaker 2: still do estate planning.

14

I do prenuptial agreements, so

that's the part of family law I do-

15

Yeah … pre-planning kinds of things-

Mm … and business succession planning.

16

Speaker: Yeah, which we really love

for today because I told Melissa I

17

wanted to have her on because I've

had some clients coming to me who have

18

questions on both sides of divorce, if

they wanna stay married or if they're

19

thinking about divorce, on how we

can protect the assets in a marriage.

20

And I'm gonna let Melissa kind of

take over and explain ways, and then

21

I'm gonna jump in with my scenarios

to see how this actually plays out.

22

So Melissa, welcome.

23

Thanks so much for being here.

24

Thanks for sharing all your

knowledge, because you have

25

a lot, and I appreciate you.

26

Speaker 2: Oh, thank you.

27

I'm happy, happy to be here.

28

Um, yeah, so protecting assets in a

marriage, um, I guess it depends on what

29

the end is for the marriage, like what

are we protecting them from or whom.

30

And so if you think about a marriage, um,

and a marriage ends in one of two ways.

31

It either ends in a divorce

or it ends in a death.

32

And so, you know, life happens and

things can get complicated, so one of

33

the ways that you can look at maybe,

um, when we're talking about things

34

like this, like a yours, ours and mine,

like yours and mine and ours assets,

35

in a marriage in Minnesota, a lot of

those assets are assumed to be ours.

36

And so when we're looking at a divorce,

for example, those, those, um, assets

37

that are considered ours by the statutes

tend to be broader than maybe what people

38

think, um, if they don't know that.

39

And so one of the ways that you can

sort of protect what is yours versus

40

ours or mine versus ours is actually

doing a prenup before you get married.

41

Speaker: Mm-hmm.

42

Speaker 2: Um, and that's a really, um,

important step that I like to do because I

43

feel like it makes a stronger relationship

and you also go in with your eyes wide

44

open, and there's a base understanding

of what could happen in either of those

45

scenarios, um, being death or divorce.

46

And so a prenuptial agreement can

say, "Hey, we like those laws and

47

we agree with them," and it sort of

stamps in time what you've brought to

48

the relationship and to the marriage.

49

Or you can say, "Hey, I

don't wanna do it that way.

50

My fiance doesn't wanna do it that way.

51

We wanna do it some other

way," and you can make your own

52

private agreement basically.

53

Um, there's lots of rules about how

those work to make them really strong

54

and valid, but that's one way to do it.

55

If you're already married- You

could do a postnuptial agreement.

56

A postnuptial agreement is saying, "Hey,

we're already married, but these are some

57

of the things that we're concerned about.

58

This is how we feel about

it now, and we don't…

59

We wanna do a yours, mine,

ours kind of scenario."

60

You can also do that after marriage.

61

There's, um, different rules

associated with that in Minnesota.

62

Um, the specific two that are important

probably is that you both would be

63

required to have an attorney, which

in my opinion makes a lot of sense,

64

because at that point in time, you have

spousal rights that you may be choosing

65

to give up, and you wanna know what

those rights are before you do that.

66

Um, and you also, um, once

you sign it, it's not actually

67

truly enforceable for two years.

68

So there is a period of time where you

can't just, like make an agreement,

69

and then a week later get divorced.

70

So that doesn't make sense.

71

So that's one of the protections that

the, the statutes have in place for you.

72

So post-nuptial agreements, prenuptial

agreements are great when we're

73

thinking about divorce scenarios.

74

Um, you can also handle death

scenarios in those kinds of

75

agreements, so those are super helpful.

76

And then when we're looking at

estates, um, there's ways that

77

you h- can waive your spousal

rights when it comes to an estate.

78

Um, and I will just say the longer you're

married, the more the, um, the statutes

79

would say as a spouse you are entitled to

if your, um, if your other spouse dies.

80

So, um, you can also waive those.

81

It's stronger if you have a prenup and

the waiver when you do the estate plan.

82

So those are some of the vehicles

that are available to you.

83

Speaker: Well, and I love that, and I

just wanna say for listeners, because

84

believe it or not, I have so many

clients that come to me and they say,

85

"Well, I'm just gonna keep my car.

86

He's gonna keep his,

and this is in my name.

87

We've, we've already

divided everything up."

88

And I think what they're not

understanding is, no you haven't.

89

You know what I mean?

90

In, especially in Minnesota,

Wisconsin I've worked in a little

91

bit too, um, what you own in that

marriage, you own together, and it

92

doesn't matter whose name is on it.

93

And so I think people…

94

That's why that prenup is so important.

95

I don't think people understand the, the

power of the, the bond of that marriage.

96

It's like starting a business

together, and that's why this is

97

so important to the listeners.

98

You need to know, um, that you've

got to set this up differently

99

if you want a different result.

100

Speaker 2: That is absolutely accurate.

101

Um, and in Minnesota, we, we have this,

sort of a short form of, um, saying

102

this, but if you own real estate,

you'll, you'll say you buy a house

103

together, um, in Minnesota you can buy

a property individually in a married-

104

if you're married, but you can't sell

it without your spouse's signature.

105

Mm-hmm.

106

So we call that one to buy, two

to sell, um, and that's something

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that's very important in Minnesota,

and the reason for that is so that

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spouses aren't just left high and

dry without a place to live, right?

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Yeah.

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Nothing can get sold out from under

you when it comes to property.

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So different types of property

is handled differently.

112

Um, you know, and in a divorce you

can also come to agreements where

113

you might decide, like, your car's

your car, and my car's my car.

114

Speaker: Yes.

115

Speaker 2: Um, but as long

as you're agreeing, right?

116

It's the, it's when we don't agree that

things get really, um, long, involved,

117

exhausting, courts are involved, and

judges start making decisions for us.

118

Speaker: I'm glad that you said that,

too, because if you use mediation or

119

collaborative law, you can do this how

you want to as long as you're clear, and

120

I always kind of say state a reason why-

121

Speaker 2: Mm-hmm

122

… Speaker: you're doing it that

way, just so the judge knows,

123

like, "I know I'm not getting as

much, and this is why I want it."

124

You know what I mean?

125

I don't know.

126

Speaker 2: Yeah.

127

This is why it felt equitable to me.

128

Speaker: Yes.

129

Speaker 2: Yeah.

130

Speaker: Yeah.

131

Okay.

132

All right.

133

So let me ask you, I'm gonna ask you

about a particular case- Where I have

134

a couple, they have a lot, a kind of a

lot of assets, and they've been married

135

a long time, and they're divorcing.

136

Right.

137

And during their marriage, uh,

husband received a gift, an

138

inheritance that was just to him,

and we haven't talked about this.

139

We've said everything belongs to both

of you, except for non-marital property.

140

Speaker 2: Exactly.

141

We have the concept of marital property

and non-marital property in divorce.

142

That concept doesn't really

exist in death, by the way.

143

Um, we can make it exist, but

it doesn't really exist there.

144

Yeah, so that, that distinction between

marital property and non-marital property

145

becomes, like, the most important thing

if you're going through a divorce.

146

And a prenuptial agreement can really be

clear about what is, in fact, non-marital

147

property, which does not get split,

that's why that's important, versus

148

marital property, which does get split.

149

Speaker: And so in general, Melissa,

can we say that if you get a gift

150

or inheritance that's to you alone

and you don't mix it in with your

151

family, um, that can stay yours?

152

Or, like, if you had a 401before the

marriage, you can keep that portion of it?

153

Is that true?

154

Speaker 2: We start doing math.

155

Um, so yes, um, if you get an inheritance

and it is only to you, so the check

156

is literally to you, not to both

of you, then technically that would

157

be considered non-marital property.

158

But what you do with it is

really important, right?

159

So if I get a check and it's non-marital

property, it's an inheritance or a

160

gift from my long-lost cousin, and

I put it into my joint account, I've

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now just basically gotten rid of the

non-marital property part of that

162

because of how I'm choosing to use it.

163

Or let's say I get, um, $100,000 'cause

somebody died and I put it into my own

164

account and I can show that this is what

I inherited, this is where I put it,

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and I haven't used it in any other way.

166

I basically have to set up all the

dominoes, because in Minnesota, the

167

person who says something is non-marital

property has the burden of proving

168

that it's non-marital property.

169

Speaker: Okay.

170

Speaker 2: And if you remove

one of those dominoes, you lose

171

the non-marital property, like,

like, protection, basically.

172

Speaker: Right.

173

Okay.

174

Mm-hmm.

175

So this is, this is…

176

So I, back to my scenario.

177

Speaker 2: Okay.

178

Speaker: Went off on a tangent

on non-marital property.

179

So we've got this couple, he receives

an inheritance that is just to him.

180

He puts that in the tru- in a

trust, and in that trust, he

181

purchases a home in Arizona.

182

that the family uses.

183

I mean, I asked this and they said, uh,

and, and the wife is, is, is even like,

184

"Oh no, the, the financial planner said

that's his 'cause he put it in a trust."

185

And I said, "I don't know if that's

necessarily true if he's using it."

186

The wife and daughter go

there and vacation there.

187

I mean, I think he's kinda

living there more now.

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Speaker 2: Sure.

189

Speaker: Um, but is that, is that

a way to keep your money safe from

190

your spouse when you inherit it,

just by putting it in a trust?

191

Speaker 2: Not necessarily, no.

192

Um

193

Speaker: Let's talk, let's

dive into that a little bit.

194

Speaker 2: Yeah.

195

So, um, I guess the first question I

would ask is what kind of a trust is it?

196

Because there's lots of

different kinds of trusts.

197

Mm-hmm.

198

So, um, if you set up what's

called a revocable trust, um,

199

versus an irrevocable trust is what

we're gonna kinda dive into here.

200

Um, 'cause when I s- when I hear

the word trust, I start thinking,

201

"Okay, well, what, what…

202

Who created the trust?

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What's in the trust?

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When was it created?"

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Those are the questions

I start to ask myself.

206

Um, so to make it very simplified, if

you have a revocable trust, which is a

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tool we use a lot in estate planning,

quite frankly, because it helps you

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avoid probate and it has other benefits.

209

If it's revocable, I think about it

as, um, you kind of own a shed in your

210

backyard, and you can put things into that

shed, and you can take things out of that

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shed, and you have the keys to the shed.

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So you are in full control of the

assets that are in the revocable

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trust and what you do with them.

214

Um, you can also change that trust.

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You, you, you maintain holding the keys.

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You're in charge.

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Versus something called

an irrevocable trust.

218

An irrevocable trust is not

like the shed in your backyard.

219

It is basically like when

you go to deposit a letter.

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Do people still write letters?

221

Um- I do.

222

And you go to the mailbox that's

not your personal mailbox.

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Maybe that's a better analogy.

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It's not my personal mailbox, it's

just the mailbox by the gas station

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or whatever, and I put things into it.

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I can't get them back.

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I'm not in control of it anymore.

228

Somebody else is.

229

That's more what an irrevocable trust is.

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So we might set up assets

in an irrevocable trust.

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I might be the one

who's feeding the trust.

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I might be the one who created

it, but I'm not in charge of it.

233

I don't have the keys.

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I can't make changes.

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It's really not mine anymore.

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It's really owned now by the trust itself.

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And the reason people do

that, 'cause you're like, "Why

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would you give up control?"

239

Um, is because they're

looking for protection, right?

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So maybe we want protection from

creditors, or we want protection

241

for, um, somebody in our family,

or maybe we want a tax benefit.

242

So, uh, Minnesota has estate taxes.

243

Not every state does that, um, but

we do, and one of the tools that

244

we can use to minimize somebody's

estate or make it smaller is to

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remove assets from the estate and

put them in an irrevocable trust.

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It's no longer counted

towards your estate.

247

So there's reasons people

would do an irrevocable trust.

248

If you get an inheritance from a parent

and they want you to be able to have

249

benefit from that trust as a beneficiary,

but they don't want you to have control

250

over it, um, that would be a way to

sort of separate out those assets.

251

And they're no- they're not really yours

until you get them as a beneficiary.

252

Does that make sense?

253

Speaker: Yeah.

254

Okay, so in my scenario,

I don't know for sure.

255

I don't know for sure if

it was an irrevocable.

256

If it was irrevocable, though, how would

he have used it to purchase a home?

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Speaker 2: That would be very dependent

on the language in the trust itself.

258

Okay.

259

So this is now where you do a

deep dive into, like, have an

260

attorney look at the tr- the trust

document and say, "What is allowed?

261

What isn't allowed?"

262

But if he has control over those

assets, I would be surprised, um,

263

that he is, um the, the trustee or the

g- the person who created the trust.

264

Like, you, once it goes

into an irrevocable trust,

265

you lose control, right?

266

Um, so that would be a great area for me,

and I would want a question about that.

267

Okay.

268

Because if it's a revocable trust, we

haven't protect- protected the assets

269

from the yours, ours, mine, marital

property, non-marital property at all.

270

It's- Right … you,

you're in control of it.

271

Um, irrevocable would be like,

it's not part of my estate.

272

I don't have access to it.

273

I can't get the money out of it.

274

That seems like a scenario where you might

be like, "Okay, so what's really going on

275

with that particular irrevocable trust?"

276

Because just because you have

one, doesn't mean that it's not

277

considered marital property.

278

So, that doesn't just

automatically protect you.

279

Okay.

280

So, let's say somebody knows they're

getting divorced, and they're planning

281

it out, you know, three years in advance

or something, and they go create this

282

irrevocable trust during the marriage,

depends on what money they used.

283

Um, because a court might look

at that and say, "Yeah, that's,

284

that feels wrong," right?

285

That just hits wrong, and so you, you

might not be able to access that money,

286

but you still might have to cover off

the marital portion of that money-

287

Speaker: Mm-hmm

288

… Speaker 2: and, um, and divide

it equally anyway, even if

289

you can't access it directly.

290

Speaker: Yeah.

291

Speaker 2: It's gonna

be very case specific.

292

Speaker: Okay.

293

And so I like that, and so I feel

like in that situation, absolutely the

294

wife should have someone on her behalf

looking at that trust and the wording,

295

um, to know what her rights are.

296

Speaker 2: For sure.

297

Yeah.

298

Speaker: Yeah.

299

Speaker 2: Yeah.

300

I mean, if…

301

I would always say, if

it doesn't feel like…

302

I always start with this, what

does this feel like to me?

303

Like, what's happening?

304

And that first question

is, who set up the trust?

305

Who's in charge of it?

306

Who has access to it?

307

What's in it?

308

Where did that asset come from?

309

When did it happen?

310

Was it pre-marriage, after marriage?

311

All of those factors are gonna

play into- Yeah … whether that

312

asset is now considered marital

property or non-marital property.

313

Speaker: That, that's, that was

my thinking, and it was during

314

the marriage, so to be determined.

315

Speaker 2: Yeah.

316

What I'll say is this, a, a judge

would not just assume that- Mm

317

they're not gonna ignore the asset, right?

318

They're gonna question it, they're

gonna look at it, they're gonna ask

319

similar questions to what I asked, which

is very different from what the IRS

320

does, just in case you're wondering.

321

Speaker: Good

322

Speaker 2: to know.

323

You know?

324

Good to know.

325

They're more like a creditor, right?

326

So- Different strokes for different folks.

327

Speaker: Right.

328

Right, right, right.

329

Okay, okay, that's super helpful.

330

You're helping me out, you're

helping the listeners out.

331

Now, I have a different scenario,

and interestingly enough, I'm helping

332

someone r- right now through this, and

this isn't the first time, so I feel

333

like, well, there might be some other

listeners who are going through this.

334

So, I'm gonna tell you, in the past, I had

a lovely couple, they w- had been married

335

a long time, and he had an addiction

problem, and they came to me because

336

he was afraid- If he lost it again,

he would spend all the money, and he

337

wanted to take care of her and his kids.

338

And he was, he was gone for, I don't

know, three years, and she didn't see

339

him, and he spent a bunch of money.

340

And they loved each other, but he just

had a really … So he was in a great

341

place when they came and they worked

with me, and we did do a divorce for them

342

even though they kind of stayed together.

343

And that way she was able to separate

out the finances and she was safe.

344

And gall darn it, I talked to her

later and he did lose it again and

345

was gone, and so we were so thankful.

346

So, you know, let's fast-forward

to just recently I've got a

347

young couple kind of in the same

scenario, and I feel protective, a

348

little protective of mom and kids.

349

Um, and she doesn't wanna get divorced.

350

She has hope.

351

And so we're trying to look at,

and I've, I've trying to come up

352

with ideas like, okay, you could…

353

I mean, you can always get

divorced and stay together.

354

That's one option.

355

Speaker 2: Mm-hmm.

356

Speaker: You can do a legal separation.

357

Mm-hmm.

358

Um, and that the laws are a little bit

different in Minnesota and Wisconsin.

359

Um, you c- she, she was wondering

if there's any way you could

360

set up some kind of a contract.

361

I believe that would be a postnuptial.

362

Speaker 2: Yeah.

363

Speaker: Can you speak to

what her options might be?

364

And his.

365

He's in this with her right now.

366

Yeah.

367

He feels the same way.

368

He doesn't want a divorce, but he wants

her protected because he knows it's scary.

369

Speaker 2: Yeah.

370

I mean, I feel like you're kind

of hitting the nail on the head of

371

what the three options would be.

372

So you have the, the first option…

373

Well, let me, let me give you

worst-case scenario first option, right?

374

Um, and I will do this

from my own experience.

375

So, um, I did practice family law.

376

I chose to focus on estate planning,

but, um, I did have a client who, um,

377

spouse had an addiction, and they were

together, I wanna say, 20, 20 plus

378

maybe, 20 plus years, enough for the

kids to, like, be out of the house-ish.

379

Mm-hmm.

380

And, um, at that point in time, we did

a divorce, and, and lots of assets had

381

been misused and, um, there's things

that you can fight about when there's

382

misuse of marital assets and things

like that, but that, again, that's

383

expensive and drawn out, and nobody really

wanted that in this particular case.

384

And, um, for me, um, in the attorney

role at that point, it was really

385

hard because I felt for the situation.

386

Um, everybody's concerned and

is worried about the money.

387

There's no getting the money back

once it's gone, to be honest with you.

388

Mm-hmm.

389

Like, that's not possible.

390

And in Minnesota, we're a no-fault

state, so we can't say, "We're divorcing

391

because of your infidelity," or- Yeah

392

"We're divorcing because of your

addiction," or whatever the…

393

So those, those are out

the window, and so…

394

And there's good reasons for that.

395

I'm not against that at all.

396

Um, but it was kind of a, kind of a tough

cookie situation because her choice was

397

to stay even though she knew that this

was happening, and he had periods where it

398

was great and periods, periods where there

was relapse and everything in between.

399

And so that's a hard pill

to swallow, I'll just say.

400

Um, but that is the pill that you

sort of swallow at that point.

401

Mm-hmm.

402

Um, another option would be to say,

"Okay- We're both in a good place.

403

We really, um, do wanna protect

the assets, and how do we do that?

404

I would be looking at a postnuptial

agreement, um, in that scenario, which

405

is basically, it's kind of like a

prenuptial agreement, but you basically

406

sit down with each other and you say,

"Okay, here's the assets that we have.

407

I'm going to start shifting assets

and saying that they're non-marital

408

property, and putting them in the

spouse that isn't ha- struggling with,

409

uh, chemical health issues, and start

separating those out so that we are able

410

to protect the more of the assets, let's

say, um, in the case of a divorce."

411

Um, one of the benefits of that is that

you get a nice, clear picture of what

412

the assets are and the liabilities.

413

We do both, because you have

to have full disclosure of the

414

financials in that situation.

415

Um, and once you sign that on the

dotted line in Minnesota, it takes a

416

couple years, um, to actually make it

enforceable, but you could also make an

417

argument that it's enforceable before

the two years, but you'd have to prove

418

it and you'd have to win that argument.

419

Um, I also think- Oh,

420

Speaker: it takes two years for that.

421

I…

422

Okay, I did see that, which

may not be great in this

423

scenario right at the moment.

424

We don't really wanna wait two years.

425

Okay.

426

Speaker 2: Well, you have to sign it,

and then you've got two years before

427

it, before it's basically, like, a-

Uh-huh … assumed to be enforceable.

428

So there's a period of time where it's

not, and that is really meant for the

429

benefit of the people who are part of this

process, because if you're doing, um, if

430

you're making marital property non-marital

property, 'cause remember, you're

431

already married, so the rights exist.

432

You have them.

433

You're not…

434

In a prenuptial agreement, you're not

married yet, so you're not giving up

435

something that you already have, you're

giving up something that you could have.

436

But in a marriage, you might be giving up

things that you already have rights to.

437

And so, um, so there is this

sort of period of time where it's

438

not assumed to be enforceable.

439

You could argue if you were in

court that it is for a bunch of

440

reasons, and I don't know if you

would win that argument or not.

441

Um, that's very dependent

on the situation, obviously.

442

Speaker: Okay.

443

So that, that doesn't sound like a

great option in the situation with

444

addiction, where you don't know timing.

445

Um, so it's good to know that that is…

446

You know, and I think I know, like,

people who have done postnups are,

447

they're maybe starting a business.

448

Mm-hmm.

449

You know what I mean?

450

And they have a partner, and so

they, they work that all out.

451

I get that, and I understand the two year.

452

That makes complete sense, you know,

because someone is giving up their rights.

453

Okay.

454

So kind of sounds like a separation

or a divorce- Might just be the option

455

Speaker 2: That's probably

the most protected, right?

456

Because you do, when you have a

divorce or a legal separation,

457

you are separating assets, right?

458

So, and that's, that's a completed

transaction, if you will.

459

So, once a divorce is finalized and

it's effectuated, like, the assets

460

are going to the person they're

supposed to go to, and based on the

461

agreement that the parties make or

what the judge tells you or whatever.

462

Um, so that's probably the strongest,

right, way to protect financial assets.

463

Um, with a postnuptial agreement, we do

have this wiggle room of time before the

464

presumption is that it's enforceable.

465

Um, in addition to that, I would

also be looking at, in an estate

466

plan, um, you know, with addiction,

there is possibilities for overdoses

467

and all, all those kinds of things,

so we start talking about death.

468

Um, depending on how the estate plan

is set up, I do know that there are

469

people who are concerned if the person

who doesn't have the chemical health

470

issue dies first, and the person who

does have the chemical health issue dies

471

second, they've inherited potentially

the whole estate, depending on how long

472

you've been married, and the family

dynamics, and kids, and all of that stuff.

473

But, um, but that's, that's a scary

scenario too, and so lots of times people

474

will make a plan for in the case of

death, what's happening with these assets.

475

In Minnesota, your spouse has a certain

level of rights to- Mm-hmm … the

476

assets of the estate, and so you

can work your way around that.

477

One of the ways to do that is to do a

combination of a postnuptial agreement,

478

as well as waivers and consent to what we

call in Minnesota is your elective share.

479

So a spouse gets a certain amount.

480

The longer you're

married, the more you get.

481

Um, and lots of spouses just give

everything to each other, so m-

482

most people, it's not necessarily on

their radar that that's what happens.

483

But there is, um, an elective

share component to this that

484

you could waive your rights to.

485

But you would wanna sign

waivers, show consent.

486

Like, you want it documented

that that's what's happening.

487

Speaker: Okay, so you're kind

of saying that for if you

488

take the postnuptial route.

489

So now let's just clarify too for

the listeners, if you get a legal

490

separation or a divorce, and you

separate those assets and, oops, you

491

had a will and you forgot about it, does

that null after you've been divorced?

492

Speaker 2: So in Minnesota, we have

laws that say with divorce, the day that

493

judgment decree is signed by the court,

that there's a severance, basically.

494

We're severing the role of spouse.

495

And so even if you named your spouse

as your beneficiary in your will,

496

if you are divorced, as of the date

of the divorce, spouse is no longer

497

eligible, uh, to be the inheritor, or

your personal representative, or your

498

trustee, or your power of attorney.

499

So there's an automatic moment

in time where those are severed.

500

Um, since I do estate planning and I'm

very much about proactive thinking, I

501

will say even though that sever- that

severs automatically, I think it's

502

really important to make sure you pick

the people you want, because we'll just

503

go down the line and who was next, and

maybe it was your spouse's brother, and

504

that's no longer appropriate, right?

505

So, um, or maybe it is.

506

I actually have, um, lots…

507

I've had several, especially in the

collaborative process, people who

508

are divorced and their spouse has

been severed from those roles, and

509

they still want them in those roles.

510

Speaker: Mm-hmm.

511

Speaker 2: So when you talk to me about

people who are divorced but are actually

512

still together and, um, and they still,

um, like the protections and the person

513

would make good decisions for them, I

will, after the divorce severs their role,

514

I will go and reinstate them sometimes.

515

Speaker: Yeah.

516

Speaker 2: Maybe not as often as other

cases, but it does happen occasionally.

517

Speaker: And especially in collaborative

law and mediations where people

518

are working together, which I

think is the best way if you can.

519

Mm-hmm.

520

Um, and then I just wanna add one

other piece- When you get divorced,

521

and if you have beneficiaries set up

for, like, life insurance, does that

522

automatically sever, or would that still

523

Speaker 2: go to the ex?

524

We always need to check our beneficiaries.

525

Let's just do that, okay?

526

Like, rule of thumb, let's just

check the beneficiaries, because we

527

do get into, like, wow, that could

be an interesting argument, right?

528

Or an interesting fight.

529

So, once…

530

But just to be clear, in Minnesota,

if you're in a divorce process

531

You cannot change your beneficiary

designations, that's not allowed,

532

um, unless everybody agrees.

533

After the divorce, then you can.

534

So there's that, that time period

where you have to be careful.

535

One of the benefits of doing a prenup,

since we did mention them earlier, is that

536

you can change that rule for yourself.

537

Right.

538

So in lots of prenups that I do, I…

539

We s- we change the date.

540

We don't say, "You can't change

your beneficiary designations until

541

the divorce is finalized," we say,

"If it's started, you can change

542

your beneficiary designation."

543

So there's, there's lots of different

nuances to the prenup that people

544

can benefit from, even if they agree

with how things would get separated.

545

Speaker: Right.

546

And I just…

547

Okay, so and ano- a point I was

trying to make, though, is that if

548

you get divorced and you have your

spouse as the beneficiary of, like,

549

your life insurance, and then you

die, it goes to your spouse, correct?

550

Speaker 2: Let's change that, yeah.

551

Speaker: Yes.

552

Speaker 2: Yeah.

553

Speaker: So-

554

Speaker 2: And there's no-

555

Speaker: So the will ends,

but not the- There's no…

556

Speaker 2: Yeah, so the, the

statutes will end it for wills,

557

trusts, powers of attorney,

executor roles, that kind of stuff.

558

But those beneficiary designations,

when you're working with

559

big companies, those are…

560

They're great tools, because they

keep you out of probate court.

561

But, um, yeah, we need to change

those beneficiary designations.

562

Yeah.

563

When it's appropriate to do so.

564

Speaker: So much to think about.

565

That's why- Yeah … I mean,

I gotta tell you, I love AI.

566

I love it.

567

I use it every day.

568

But I have had people coming to me

and thinking they know everything.

569

It's just hard.

570

You do need a little bit of help a

lot, or, you know, just get informed

571

on what you need to do as best you can,

'cause there is so m- I mean, this,

572

I'm like, okay, we're at our time now.

573

Like, and I feel like I thought

this was gonna be a quick little…

574

You know?

575

But these are really in-depth

things, and I'm so thankful.

576

You clarified things.

577

I learned.

578

Yeah.

579

This is gonna help my listeners,

so I so appreciate you.

580

I know I'm gonna have you back on-

Great … 'cause I love having you.

581

Speaker 2: Yeah, I'd love to be back.

582

Hopefully we sh- shed some light

a- at least to, to know that

583

there's, like, things you can do.

584

Um, I don't think there's a,

a solid best-fits-everybody

585

answer to that question.

586

I think there's a lot based on the

individual circumstances, which is

587

one of the reasons I like working with

families, 'cause everybody has their

588

own things that they bring to the table.

589

Right.

590

Yeah, so.

591

Speaker: Yeah.

592

It's good.

593

And so I would highly recommend you to

my listeners if they're in Minnesota.

594

Speaker 2: Yeah, mm-hmm.

595

Speaker: And we'll have your,

um, contact in the show notes.

596

Okay, great.

597

But otherwise, it's Melissa Miroslavich.

598

How can they reach you?

599

Speaker 2: They can go miroslavichlaw.com

600

if they can spell it, but it'll be

601

Speaker: right there.

602

I'll have it in the show notes too.

603

But if you're thinking, "Oh, I'm getting

married, I wanna talk about the prenup,"

604

or if you're thinking about, even just

thinking about divorce, I don't think

605

it's a bad idea to touch base with

you to find out, okay, how is this…

606

What do I need to be thinking of?

607

Because sometimes, darn it,

that family law attorney isn't

608

always remembering those things.

609

Speaker 2: That's true.

610

So- That's true.

611

Well- Yeah.

612

Speaker: Well.

613

It's

614

Speaker 2: true.

615

Absolutely.

616

Speaker: All right.

617

Well, Melissa, thank you.

618

I appreciate you.

619

Thanks so much for being here.

620

Speaker 2: Thanks for having me.

621

It's good to see you again.

622

Bye, Lisa.

623

Yes,

624

Speaker: you take care.