Getting remarried after the death of a spouse or a divorce is fairly common. We also see it more and more in the senior years as people live longer lives.
Whenever this happens, like it or not, there are plenty of planning issues that need to be addressed and prioritized. Many times both partners have children from previous marriages, and often there are differences in the amount of assets each partner owns. Additionally, each person in the relationship can have varying thoughts on how all of these items should be handled as the couple attempts to combine their lives and assets. A partial list of common questions many people have with a remarriage situation include:
- Whose house will we use after we remarry?
- What happens if one of us should die, and how will my children receive any inheritance?
- What is mine and what is ours when it comes to assets?
- What happens if one of us needs extended long-term care?
The list of questions can be much longer, and quite often the answers to these questions create early tension in a relationship.
Prenuptial Agreements: Why You Should Consider One
Many people have negative feelings associated with prenuptial agreements. Unfortunately, this negative perception prevents a lot of people, who could be helped by this legal tool, to miss out on the benefits a prenup can deliver. By reframing the opinions and feelings we have about prenups, they can be seen for the helpful legal tool that they can be for many couples. Perhaps most importantly, prenups can protect spouses, children, and family legacies when it comes to planning with the blended family.
A prenuptial agreement is a contract between two parties (i.e. future spouses) over how multiple items will be handled in their future marriage. Prenuptial agreements can be very effective, but over the years the thought of a prenuptial agreement has been difficult for many couples to accept. Unfortunately, prenuptial agreements have become one of the more litigious agreements, and disagreements about prenups can create intense conflict between spouses. Despite this reality, we HIGHLY recommend prenuptial agreements for remarriages. We encourage the creation of the prenup through a professional, non-threatening process — typically with two experienced attorneys to represent each spouse.
Even if we reframe our negative opinions about prenuptial agreements, the reality is that the human element of both future spouses bringing their own assets into a relationship will lead to tough discussions. So, if you want to preserve a legacy for your children and grandchildren while making sure your new spouse is well cared for, then these tough conversations need to take place. It is also critical to ensure the prenuptial agreement is properly woven into your estate plans.
11 Good Questions Every Prenuptial Agreement Should Answer
Prenuptial agreements are custom contractual agreements, so each couple may cover different topics within their agreement. Agreements including child custody are less common, so prenuptial agreements typically do not include any child custody agreements. Here are some common issues that are included in many prenups:
- What is an individual’s separate property vs. the couple’s marital property?
- What will the future growth of any separate property be considered? (Will it be considered separate property or marital property?)
- How will the earnings of each individual be considered once married (separate property or marital property)?
- What surviving spouse legal rights are given up with this agreement?
- How will future retirement benefits be handled between the two individuals?
- What will happen with the personal property brought into the future marriage?
- How will we handle our income tax filing and future bank accounts?
- If one individual has existing debts, how are these handled after remarriage?
- How will any future inheritances be handled after remarriage? What is mine vs. ours?
- If we get divorced in the future, what agreements can we define at this time?
- Who will pay for long-term care costs if one of us has an expensive, long-term illness?
Recommended Steps With Remarriage
Every couple needs to make their own decisions about their future needs as they remarry. There are many considerations, and prenuptial planning is just one of those things. We HIGHLY recommend that all couples who are remarrying consider a prenuptial agreement for a better future. The general “negotiation” of a prenuptial agreement can create tension between the parties, but the peace-of-mind created by defining any critical items within the agreement is well worth it.
As attorneys we try to minimize the need for costly future litigation, and we try to provide our clients with objective recommendations that will serve them well. It is much, much easier to define the agreement between future spouses on difficult issues in advance, than deal with them in less than desirable situations in the future. In the end, every couple remarrying will need to make their own decisions.
Prenuptial agreements are just another element of an individual’s overall planning — like a will, a trust, or other legal planning tools. In addition to challenging the assumptions around prenuptial agreements, we encourage couples remarrying in the future to strongly consider such an agreement. We also encourage ALL individuals to complete their overall estate planning, lay out any long-term care plans in advance, ensure your estate is not a mess for your loved ones, and live happily with the peace-of-mind that all of this is structured properly for the future.
If you have additional questions about prenuptial agreements or need to speak with an attorney about creating such an agreement, we encourage you to call 913-345-2323. Each individual spouse should have their own separate representation, so we are usually meeting with one spouse or the other and rarely both of them.
We’d be more than happy to speak with you, and we look forward to helping you.