Let’s be honest, the topic of estate planning can be a little, well, dry. Every lawyer, financial advisor, real estate agent, and the like will encourage you to have a quality estate plan professionally drafted, but it tends to be one of those things you’ll get to eventually. Life happens, work piles up, your to-do list grows longer and deciding what you want done with your remains after you die seems like a worry for another day. But, once in a great while a story comes up where the topic of estate planning is so necessary and uniquely integrated that it’s hard to ignore—cue the buzz-worthy podcast, S-Town. The podcast broke a record with 10 million downloads in four days, so don’t just take my word for it.
Caution: A few spoilers ahead
If you haven’t listened to S-Town and don’t want to know ANY details of what unfolds, stop reading now. Go listen and then come back to read how S-Town exemplifies some of the key reasons you need a will ASAP.
The highly bingeable story from Serial Productions (masterminded by the producers at This American Life and Serial), takes place in a small town in Alabama. As This American Life producer Brian Reed dives into what appears to be a true crime story, in line with the first season of Serial, the tale takes an unexpected twist following an unanticipated death.
Brian Reed, S-Town
The person who passed away didn’t have an estate plan. At first this may not seem like a big deal, but without a last will and testament, the individual’s death left a wake of conflict and confusion. Without an estate plan, a mother with dementia is left without defined care and guardianship; 13 dogs are left without a pet trust to declare who will care for them; property is fought over; a felony charge is issued; a religious funeral is held despite the deceased’s atheism; a house and land are sold, likely against the wishes of the individual if they had been alive; an immaculate, amazing garden maze will be destroyed; and because the deceased was “unbanked” there were no cash assets to pay for a funeral and other important costs. This person had verbally told some people what he wanted them to have in terms of property and monetary assets, but there was no written record, and such hearsay doesn’t hold up in a probate court.
S-Town is not only an example of excellent storytelling, but also a real world example of what can happen when someone dies without putting in place clear directions and wishes for property, cash and non-cash assets, pets, health care, and final disposition. You don’t want your family and friends to fight, press charges, and dig up your property in search of gold when you die. So, there’s no day like today to have your estate plan drawn up.
Already have an estate plan? Good. It’s probably time you reviewed and updated it.
Feel free to contact me any time to discuss further how to start an estate plan. I offer a one-hour free consultation, without any obligation. I can be reached any time at my email, gordon@gordonfischerlawfirm.com, or on my cell, 515-371-6077.
https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/04/s-town.jpg8001200Gordon Fischerhttps://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.pngGordon Fischer2017-04-06 22:00:522020-05-18 11:28:58S-Town and the Case for an Estate Plan
I say, it’s better to give and receive. You can both give and receive by using the federal income tax charitable deduction.
A gift to a qualified charitable organization may entitle you to a charitable contribution deduction against your income tax if you itemize deductions. Assuming the gifts are deductible, the actual cost of your gift is reduced by your tax savings.
Charitable Deduction Tax Savings
For a discussion of tax brackets, see my post called bracketology. In short, as of this writing (April 2017), there are seven federal income tax brackets: 10%, 15%, 25%, 28%, 33%, 35% and 39.6%.
The charitable deduction can result in significant tax savings regardless of which bracket you’re in, although the bracket does change the savings. For example, assume a donor in the 33% tax bracket gives a donation of $100 to her favorite qualified charitable organization. The charity receives the full gift of $100, but, for the donor, the actual out-of-pocket cost of the gift is only $67, and the donor saves $33.
Let’s make these assumptions for all tax brackets and see the savings which result:
Bracket of Gift
Donation
Savings
Actual Cost
10%
$100
$10
$90
15%
$100
$15
$80
25%
$100
$25
$75
28%
$100
$28
$72
33%
$100
$33
$67
35%
$100
$35
$65
39.6%
$100
$39.6
$60.40
This is a good deal for you and a good deal for your favorite causes. So why not consider using the charitable deduction?
One common is excuse is that the charitable deduction requires you to be extremely organized in maintaining records. Generally speaking, the greater the deduction, the more detailed the records you are required to keep. Yet, this organization is made a little bit easier when fully understanding the deduction.
Charitable Deduction: Basics of Substantiation
Here’s a simple explanation of IRS record keeping rules for the charitable deduction:
Gifts of less than $250 per donee — you need a cancelled check or receipt
$250 or more per donee — you need a timely written acknowledgement from the donee
Total deductions for all property exceeds $500 — you need to file IRS Form 8283
Deductions exceeding $5,000 per item — you need a qualified appraisal completed by a qualified appraiser
Wait, you ask, is it really that simple? Actually, no, not really. Let’s go through these categories and dig deeper.
Substantiation Requirements for Monetary Gifts less than $250
A federal income tax deduction for a charitable contribution in the form of cash, check, or other monetary gift is not allowed unless the donor substantiates the deduction with a bank record or a written communication from the donee showing the name of the donee, the date of the contribution, and the amount of the contribution.
Meaning of “Monetary Gift”
For this purpose, the term “monetary gift” includes the common ones you think of when thinking of the term–gifts of cash or by check. But monetary gift also includes gifts by use of:
credit card;
electronic fund transfer;
online payment service;
payroll deduction; or
transfer of a gift card redeemable for cash.
Definition: Bank Record
Again, to claim the charitable deduction for any monetary gift, you need a bank record or written communication from the donee. The term “bank record” includes a statement from a financial institution, an electronic fund transfer receipt, a cancelled check, a scanned image of both sides of a cancelled check obtained from a bank website, or a credit card statement.
Definition: Written Communication
The term “written communication” includes email. Presumably it also includes text messages. But, again, the written communication, whether paper or electronic, it must show the name of the donee, the date of the contribution, and the amount of the contribution.
Substantiation of Gifts of $250 or more
For any contribution of either cash or property of $250 or more, a donor must receive contemporaneous written acknowledgment from the donee. Two keys here: “contemporaneous” and “written acknowledgement” both have very specific meanings in this context.
Requirements of written acknowledgment
The written acknowledgment must include:
The date of the gift and the charity’s name and location.
Whether the gift was cash or a description of the non-cash gift.
A statement that no goods or services were provided by the organization in return for the contribution, if that was the case.
A description and good faith estimate of the value of goods or services, if any, that an organization provided in return for the contribution.
A statement that goods or services, if any, that an organization provided in return for the contribution consisted entirely of intangible religious benefits, if that was the case.
“Contemporaneous”
For a written acknowledgment to be considered contemporaneous with the contribution, a donor must receive the acknowledgment by the earlier of: the date on which the donor actually files his or her individual federal income tax return for the year of the contribution or the due date (including extensions) of the return.
You’ll only have to fill out Section A of Form 8283 if:
the gifts are worth less than $5,000, or
you’re giving publicly traded securities (even if they’re worth more than $5,000).
Otherwise, you’ll be required to fill out Section B of Form 8283 and all that entails.
Non-Cash Gifts of more than $5,000
If you donate property worth more than $5,000 ($10,000 for stock in a closely held business), you’ll need to get an appraisal. The information goes in Section B of Form 8283, Noncash Charitable Contributions.
An appraisal is required whether you donate one big item or several similar items which have a total value of more than $5,000. For example, if you give away a hundred valuable old books, and their total value is more than $5,000, you’ll need an appraisal even though you might think you’re really making a lot of small gifts. The rule applies even if you give the items to different charities.
Requirements for “qualified appraisal” and “qualified appraiser”
Again, non-cash gifts of more than $5,000 in value, with limited exceptions, require a qualified appraisal completed by a qualified appraiser. The terms “qualified appraisal” and “qualified appraiser” are very specific and have detailed definitions according to the IRS.
Qualified appraisal
A qualified appraisal is a document which is:
Made, signed, and dated by a qualified appraiser in accordance with generally accepted appraisal standards;
timely;
does not involve prohibited appraisal fees; and
includes certain and specific information.
Let’s further examine each of these four requirements.
“Qualified Appraiser”
Appraiser Education and Experience Requirements
An appraiser is treated as having met the minimum education and experience requirements if she is licensed or certified for the type of property being appraised in the state in which the property is located. In Iowa, for a gift of real estate, this means certification by the Iowa Professional Licensing Bureau, Real Estate Appraisers.
Further requirements for a qualified appraiser include that they:
Regularly performs appraisals for compensation;
demonstrates verifiable education and experience in valuing the type of property subject to the appraisal;
understands they may be subject to penalties for aiding and abetting the understatement of tax; and
not have been prohibited from practicing before the IRS at any time during three years preceding the appraisal.
Also, a qualified appraiser must be sufficiently independent. This means a qualified appraiser cannot be any of the following:
The donor;
the donee;
the person from whom the donor acquired the property [with limited exceptions];
any person employed by, or related to, any of the above; and/or
an appraiser who is otherwise qualified, but who has some incentive to overstate the value of the property.
Timing of Appraisal
The appraisal must be made not earlier than 60 days prior to the gift and not later than the date the return is due (with extensions).
Prohibited Appraisal Fees
The appraiser’s fee for a qualified appraisal cannot be based on a percentage of the value of the property, nor can the fee be based on the amount allowed as a charitable deduction.
Specific Information Required in an Appraisal
Specific information must be included in an appraisal, including:
A description of the property;
the physical condition of any tangible property;
the date (or expected date) of the gift;
any restrictions relating to the charity’s use or disposition of the property;
the name, address, and taxpayer identification number of the qualified appraiser;
the appraiser’s qualifications, including background, experience, education, certification, and any membership in professional appraisal associations;
a statement that the appraisal was prepared for income tax purposes;
the date (or dates) on which the property was valued;
the appraised FMV on the date (or expected date) of contribution;
the method of valuation used to determine FMV;
the specific basis for the valuation, such as any specific comparable sales transaction; and
an admission if the appraiser is acting as a partner in a partnership, an employee of any person, or an independent contractor engaged by a person, other than the donor, with such a person’s name, address, and taxpayer identification number.
Appraiser’s Dated Signature and Declaration
Again, a qualified appraisal must be signed and dated by the appraiser. Also, there must be a written declaration from the appraiser she is aware of the penalties for substantial or gross valuation
The charitable deduction can result in significant tax savings. But, substantiation rules, as you’ve seen, can be complicated. Almost all Iowans have a unique estate plan, so be sure to contact the appropriate professional for personal advice and counsel.
Feel free to contact me any time to discuss how to maximize your charitable gift. I offer a one-hour free consultation, without any obligation. I can be reached any time at my email,gordon@gordonfischerlawfirm.com, or on my cell, 515-371-6077.
https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/04/income-tax.jpg515940Gordon Fischerhttps://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.pngGordon Fischer2017-04-04 12:18:352020-05-18 11:28:59Record Keeping Requirements for the Federal Income Tax Charitable Deduction
Can Monica, my wife, disinherit me? In a word, no.
Assuming a valid marriage in Iowa, a spouse cannot disinherit a spouse. Even if a spouse wants to do so, even if that’s the spouse’s true intent—nope.
What If…?
What if in a legal will, the first-to-die spouse includes the following clause:
“I acknowledge that I have a spouse, named Gordon Fischer, who is not provided for in this will. It is my specific intention to not provide for my spouse Gordon Fischer under the terms of my will.”
Even with a clear clause like this, I, Gordon, am not disinherited. Why is this so?
Statutory “Forced Share”
An Iowa statute allows spouses to take a “forced share” against the will. In short, the surviving spouse has a choice; the spouse can inherit any property bequeathed to him/her under the will, OR the spouse can take a forced share. So, even if a will leaves nothing for the surviving spouse, the surviving spouse can take a forced share against the will.
Under Iowa law (specifically, Iowa Code § 633.238), a surviving spouse that elects against the will is entitled to:
One-third of the decedent’s real property;
All exempt personal property that the decedent held; and,
One-third other personal property of the decedent that is not necessary for payment of debts and other charges.
In other words, a surviving spouse can choose (elect) after your death to basically ignore your will or trust that doesn’t provide for said surviving spouse, and take approximately one-third of your estate.
For example, if you left your entire estate to your children and not your spouse, your spouse can say, “You know, I don’t like this at all. I’ll take one-third of my dead spouse’s estate. Thank you!” And, pretty much just like that, boom, the surviving spouse can do so.
Oral Agreement to Disinherit
What if Monica and I talk about this matter and come to an oral agreement. Something like this:
Monica: I want to disinherit you. Should you be the surviving spouse, you should get nothing.
Gordon: Wow. That hurts. But if that’s what you want honey, I agree.
Is this agreement enforceable? No, for several reasons. First, it’s not written and oral agreements are generally unenforceable. Also, it doesn’t and can’t displace the plain language of an Iowa statue which allows a spouse to elect a forced share against the will, and gain one-third of the estate. You can’t orally agree to ignore a statute’s clear intent!
Written Agreement to Disinherit
But what if Monica asked me to agree, in writing, to not take a spousal share? Say, we write up a formal contract stating I’m essentially not getting anything under Monica’s will, no how, no way. I also agree in the contract that under no circumstances will I take a statutory share.
Would such a written contract be enforceable? No.
While Iowans have a great deal of freedom to contract, just like the above oral agreement example, you can’t contract in direct opposition to a clear statute.
Postnuptial Agreements
Also, interestingly, Iowa courts have ruled postnuptial agreements are not enforceable.
Postnuptial agreements are written contracts between spouses that are executed after the couple has married (as opposed to the prenuptial agreements you usually hear about). Iowa courts have struck down postnuptial agreements for nearly a century, since 1912 when the Iowa Supreme Court first found postnuptial agreements to be of no validity. In re Kennedy’s Estate, 135 N.W. 53 (Iowa 1912).
But Monica, it’s OK. Very likely you’ll be the surviving spouse anyway.
Beyond just your spouse, it’s important to have an updated estate plan to define all of your beneficiaries and wishes for your estate following your death. Have questions or need more information? Feel free to reach out any time. You can contact me by email at Gordon@gordonfischerlawfirm.com or give me a call at 515-371-6077.
https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/03/marriage2.jpg565849Gordon Fischerhttps://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.pngGordon Fischer2017-03-29 07:28:322020-05-18 11:28:59Can my Wife Disinherit Me? The Answer may Surprise You.
S-Town and the Case for an Estate Plan
Estates & Estate Planning, Powers of Attorney, WillsLet’s be honest, the topic of estate planning can be a little, well, dry. Every lawyer, financial advisor, real estate agent, and the like will encourage you to have a quality estate plan professionally drafted, but it tends to be one of those things you’ll get to eventually. Life happens, work piles up, your to-do list grows longer and deciding what you want done with your remains after you die seems like a worry for another day. But, once in a great while a story comes up where the topic of estate planning is so necessary and uniquely integrated that it’s hard to ignore—cue the buzz-worthy podcast, S-Town. The podcast broke a record with 10 million downloads in four days, so don’t just take my word for it.
Caution: A few spoilers ahead
If you haven’t listened to S-Town and don’t want to know ANY details of what unfolds, stop reading now. Go listen and then come back to read how S-Town exemplifies some of the key reasons you need a will ASAP.
The highly bingeable story from Serial Productions (masterminded by the producers at This American Life and Serial), takes place in a small town in Alabama. As This American Life producer Brian Reed dives into what appears to be a true crime story, in line with the first season of Serial, the tale takes an unexpected twist following an unanticipated death.
Brian Reed, S-Town
The person who passed away didn’t have an estate plan. At first this may not seem like a big deal, but without a last will and testament, the individual’s death left a wake of conflict and confusion. Without an estate plan, a mother with dementia is left without defined care and guardianship; 13 dogs are left without a pet trust to declare who will care for them; property is fought over; a felony charge is issued; a religious funeral is held despite the deceased’s atheism; a house and land are sold, likely against the wishes of the individual if they had been alive; an immaculate, amazing garden maze will be destroyed; and because the deceased was “unbanked” there were no cash assets to pay for a funeral and other important costs. This person had verbally told some people what he wanted them to have in terms of property and monetary assets, but there was no written record, and such hearsay doesn’t hold up in a probate court.
S-Town is not only an example of excellent storytelling, but also a real world example of what can happen when someone dies without putting in place clear directions and wishes for property, cash and non-cash assets, pets, health care, and final disposition. You don’t want your family and friends to fight, press charges, and dig up your property in search of gold when you die. So, there’s no day like today to have your estate plan drawn up.
A good place to start is with my obligation-free Estate Plan Questionnaire.
Already have an estate plan? Good. It’s probably time you reviewed and updated it.
Feel free to contact me any time to discuss further how to start an estate plan. I offer a one-hour free consultation, without any obligation. I can be reached any time at my email, gordon@gordonfischerlawfirm.com, or on my cell, 515-371-6077.
Record Keeping Requirements for the Federal Income Tax Charitable Deduction
Charitable Giving, Taxes & FinanceI say, it’s better to give and receive. You can both give and receive by using the federal income tax charitable deduction.
A gift to a qualified charitable organization may entitle you to a charitable contribution deduction against your income tax if you itemize deductions. Assuming the gifts are deductible, the actual cost of your gift is reduced by your tax savings.
Charitable Deduction Tax Savings
For a discussion of tax brackets, see my post called bracketology. In short, as of this writing (April 2017), there are seven federal income tax brackets: 10%, 15%, 25%, 28%, 33%, 35% and 39.6%.
The charitable deduction can result in significant tax savings regardless of which bracket you’re in, although the bracket does change the savings. For example, assume a donor in the 33% tax bracket gives a donation of $100 to her favorite qualified charitable organization. The charity receives the full gift of $100, but, for the donor, the actual out-of-pocket cost of the gift is only $67, and the donor saves $33.
Let’s make these assumptions for all tax brackets and see the savings which result:
This is a good deal for you and a good deal for your favorite causes. So why not consider using the charitable deduction?
One common is excuse is that the charitable deduction requires you to be extremely organized in maintaining records. Generally speaking, the greater the deduction, the more detailed the records you are required to keep. Yet, this organization is made a little bit easier when fully understanding the deduction.
Charitable Deduction: Basics of Substantiation
Here’s a simple explanation of IRS record keeping rules for the charitable deduction:
Wait, you ask, is it really that simple? Actually, no, not really. Let’s go through these categories and dig deeper.
Substantiation Requirements for Monetary Gifts less than $250
A federal income tax deduction for a charitable contribution in the form of cash, check, or other monetary gift is not allowed unless the donor substantiates the deduction with a bank record or a written communication from the donee showing the name of the donee, the date of the contribution, and the amount of the contribution.
Meaning of “Monetary Gift”
For this purpose, the term “monetary gift” includes the common ones you think of when thinking of the term–gifts of cash or by check. But monetary gift also includes gifts by use of:
Definition: Bank Record
Again, to claim the charitable deduction for any monetary gift, you need a bank record or written communication from the donee. The term “bank record” includes a statement from a financial institution, an electronic fund transfer receipt, a cancelled check, a scanned image of both sides of a cancelled check obtained from a bank website, or a credit card statement.
Definition: Written Communication
The term “written communication” includes email. Presumably it also includes text messages. But, again, the written communication, whether paper or electronic, it must show the name of the donee, the date of the contribution, and the amount of the contribution.
Substantiation of Gifts of $250 or more
For any contribution of either cash or property of $250 or more, a donor must receive contemporaneous written acknowledgment from the donee. Two keys here: “contemporaneous” and “written acknowledgement” both have very specific meanings in this context.
Requirements of written acknowledgment
The written acknowledgment must include:
“Contemporaneous”
For a written acknowledgment to be considered contemporaneous with the contribution, a donor must receive the acknowledgment by the earlier of: the date on which the donor actually files his or her individual federal income tax return for the year of the contribution or the due date (including extensions) of the return.
Non-Cash Gifts of more than $500
If you make a total of more than $500 worth of non-cash gifts in a calendar year, you must file Form 8283, Noncash Charitable Contributions, with your income tax return.
You’ll only have to fill out Section A of Form 8283 if:
Otherwise, you’ll be required to fill out Section B of Form 8283 and all that entails.
Non-Cash Gifts of more than $5,000
If you donate property worth more than $5,000 ($10,000 for stock in a closely held business), you’ll need to get an appraisal. The information goes in Section B of Form 8283, Noncash Charitable Contributions.
An appraisal is required whether you donate one big item or several similar items which have a total value of more than $5,000. For example, if you give away a hundred valuable old books, and their total value is more than $5,000, you’ll need an appraisal even though you might think you’re really making a lot of small gifts. The rule applies even if you give the items to different charities.
Requirements for “qualified appraisal” and “qualified appraiser”
Again, non-cash gifts of more than $5,000 in value, with limited exceptions, require a qualified appraisal completed by a qualified appraiser. The terms “qualified appraisal” and “qualified appraiser” are very specific and have detailed definitions according to the IRS.
Qualified appraisal
A qualified appraisal is a document which is:
Let’s further examine each of these four requirements.
“Qualified Appraiser”
Appraiser Education and Experience Requirements
An appraiser is treated as having met the minimum education and experience requirements if she is licensed or certified for the type of property being appraised in the state in which the property is located. In Iowa, for a gift of real estate, this means certification by the Iowa Professional Licensing Bureau, Real Estate Appraisers.
Further requirements for a qualified appraiser include that they:
Also, a qualified appraiser must be sufficiently independent. This means a qualified appraiser cannot be any of the following:
Timing of Appraisal
The appraisal must be made not earlier than 60 days prior to the gift and not later than the date the return is due (with extensions).
Prohibited Appraisal Fees
The appraiser’s fee for a qualified appraisal cannot be based on a percentage of the value of the property, nor can the fee be based on the amount allowed as a charitable deduction.
Specific Information Required in an Appraisal
Specific information must be included in an appraisal, including:
Appraiser’s Dated Signature and Declaration
Again, a qualified appraisal must be signed and dated by the appraiser. Also, there must be a written declaration from the appraiser she is aware of the penalties for substantial or gross valuation
The charitable deduction can result in significant tax savings. But, substantiation rules, as you’ve seen, can be complicated. Almost all Iowans have a unique estate plan, so be sure to contact the appropriate professional for personal advice and counsel.
Feel free to contact me any time to discuss how to maximize your charitable gift. I offer a one-hour free consultation, without any obligation. I can be reached any time at my email, gordon@gordonfischerlawfirm.com, or on my cell, 515-371-6077.
Can my Wife Disinherit Me? The Answer may Surprise You.
From Gordon's Desk..., WillsIn Iowa, Spouses Can’t Disinherit Spouses
Can Monica, my wife, disinherit me? In a word, no.
Assuming a valid marriage in Iowa, a spouse cannot disinherit a spouse. Even if a spouse wants to do so, even if that’s the spouse’s true intent—nope.
What If…?
What if in a legal will, the first-to-die spouse includes the following clause:
“I acknowledge that I have a spouse, named Gordon Fischer, who is not provided for in this will. It is my specific intention to not provide for my spouse Gordon Fischer under the terms of my will.”
Even with a clear clause like this, I, Gordon, am not disinherited. Why is this so?
Statutory “Forced Share”
An Iowa statute allows spouses to take a “forced share” against the will. In short, the surviving spouse has a choice; the spouse can inherit any property bequeathed to him/her under the will, OR the spouse can take a forced share. So, even if a will leaves nothing for the surviving spouse, the surviving spouse can take a forced share against the will.
Under Iowa law (specifically, Iowa Code § 633.238), a surviving spouse that elects against the will is entitled to:
In other words, a surviving spouse can choose (elect) after your death to basically ignore your will or trust that doesn’t provide for said surviving spouse, and take approximately one-third of your estate.
For example, if you left your entire estate to your children and not your spouse, your spouse can say, “You know, I don’t like this at all. I’ll take one-third of my dead spouse’s estate. Thank you!” And, pretty much just like that, boom, the surviving spouse can do so.
Oral Agreement to Disinherit
What if Monica and I talk about this matter and come to an oral agreement. Something like this:
Monica: I want to disinherit you. Should you be the surviving spouse, you should get nothing.
Gordon: Wow. That hurts. But if that’s what you want honey, I agree.
Is this agreement enforceable? No, for several reasons. First, it’s not written and oral agreements are generally unenforceable. Also, it doesn’t and can’t displace the plain language of an Iowa statue which allows a spouse to elect a forced share against the will, and gain one-third of the estate. You can’t orally agree to ignore a statute’s clear intent!
Written Agreement to Disinherit
But what if Monica asked me to agree, in writing, to not take a spousal share? Say, we write up a formal contract stating I’m essentially not getting anything under Monica’s will, no how, no way. I also agree in the contract that under no circumstances will I take a statutory share.
Would such a written contract be enforceable? No.
While Iowans have a great deal of freedom to contract, just like the above oral agreement example, you can’t contract in direct opposition to a clear statute.
Postnuptial Agreements
Also, interestingly, Iowa courts have ruled postnuptial agreements are not enforceable.
Postnuptial agreements are written contracts between spouses that are executed after the couple has married (as opposed to the prenuptial agreements you usually hear about). Iowa courts have struck down postnuptial agreements for nearly a century, since 1912 when the Iowa Supreme Court first found postnuptial agreements to be of no validity. In re Kennedy’s Estate, 135 N.W. 53 (Iowa 1912).
But Monica, it’s OK. Very likely you’ll be the surviving spouse anyway.
Beyond just your spouse, it’s important to have an updated estate plan to define all of your beneficiaries and wishes for your estate following your death. Have questions or need more information? Feel free to reach out any time. You can contact me by email at Gordon@gordonfischerlawfirm.com or give me a call at 515-371-6077.