Legal Question in Wills and Trusts in North Carolina

Enforceability of the loans has nothing to do with the post-nuptial agreement. Generally, the post-nuptial agreement is to basically provide that what is each spouse's assets stays separate in the event of death or divorce. Of course, I would need to see the agreement to know exactly what it says in this case to be certain. Even though there is a post-nuptial agreement, the terms of the agreement can always be overridden by the actions of the parties. For example, where the parties jointly own real property as husband and wife or where either makes a will leaving their assets to the survivor, those dispositions will control regardless of the post-nuptial agreement if made after the agreement was executed.

Regarding the loan, that is a bad move for spouse 2. If spouse 1's assets are exhausted, so be it. Spouse 1 can then apply for Medicaid. If spouse 1 receives Medicaid, state law mandates that the state seek recovery from spouse 1's estate.

Assuming that spouse 2 nevertheless makes a loan to spouse 1 and then spouse 1 dies, spouse 2 will have a claim against spouse 1's estate (assuming that the loan is evidenced by a valid promissory note). All of the debts of spouse 1 must be repaid before the heirs of spouse 1 receive anything. It does not matter if this is a loan to spouse 1 or some other kind of debt (like Medicaid recovery or a debt owed to a nursing home). That is the responsibility of spouse 1's estate and any valid claims must be paid before the heirs get assets.

Spouse 1 and 2 need to see an estate planning/elder law attorney if they have not already done so to see best how to structure this so as to protect the assets of spouse 2 and maximize spouse 1's eligibility for Medicaid.