"Just because you have an extremely restrictive prenup doesn't mean you can't leave money to your wife," Mr. Bishop says. "The prenup protected the client's assets from being taken against his will, but he was still free to give them at his discretion."
Take a lesson from a recent Wall Street Journal article, titled "Creating an Estate Plan Around a Prenup." The article chronicles how an estate planning attorney worked with a client to ensure the needs of the client were addressed. After thoroughly understanding the estate planning goals of the client, the attorney created a plan that provided for the client’s family after he passed away. This plan preserved the terms of the prenuptial agreement that kept his wife from taking his assets and business in a divorce. The adviser suggested using family limited partnerships. This type of entity gave the client a way to provide for his wife with income from the business—without giving her control of the enterprise.
Under the family limited partnership structure, the client had 99% limited partner ownership in the two companies. When he died, his will would set out some of the limited partner interest to his wife. These shares would be given to a testamentary trust with the wife as trustee and beneficiary. As a result, the wife would receive income from the business through the trust; however, she would not get a controlling stake in the company.
The estate planning attorney created the partnerships and transferred ownership of the business assets into them. The WSJ reported that the client and his wife have been very happy with the results for more than 15 years now, with both a strong business and marriage.
Reference: Wall Street Journal (July 11, 2014) "Creating an Estate Plan Around a Prenup"