A prenup can protect you when you remarry.
A prenuptial agreement goes by several names.
It is often called an antenuptial agreement, a premarital agreement, prenuptial contract, or simply a prenup.
When you hear the word “prenup,” do you automatically think of the rich and famous?
While there is certainly wisdom for those with large fortunes to protect their assets with a prenuptial agreement, others can benefit as well.
Having children and having a long work history are both good reasons to utilize a prenup.
According to recent FedWeek article titled “A Prenup May Be Prudent for Later-Life Marriages,” choosing to not sign a prenuptial agreement can cause conflict and financial strain on yourself and your loved ones in the future.
Many people mistakenly believe a prenuptial agreement is only necessary to protect your assets in the event of divorce.
With this mindset, why would you get a prenuptial agreement?
People do not enter into marriage planning to get a divorce.
When you frame it as what will happen to assets if you die or are divorced, it may be easier to convince your fiancé of its value.
Are you still not convinced you need a prenup?
Consider these reasons.
Pass separate property to children from your prior marriage(s).
If at least one of the parties to this marriage or remarriage has children from a previous relationship, you will want to have a prenup outlining inheritance of separate property.
Without a prenup, your surviving spouse may have a right to claim a significant amount of your estate, leaving little to nothing for your children.
Clarify financial rights.
Couples with or without children may just want to clarify their financial rights and responsibilities during marriage.
Special care must be taken when it comes to ERISA retirement funds (think 401k or profit-sharing plans).
Unless there is a “written waiver” by your “spouse,” then your “spouse” is automatically the primary beneficiary regardless what the beneficiary form on file with the institution states.
Consequently, your prenup must account for this fact of law and provide an agreement to execute such written waiver once your intended becomes your spouse.
This stuff can get technical faster than two shakes of a lamb’s tail.
What if one party already may have a received a sizeable family gift or may expect a sizeable future inheritance?
The existence of the gift or the expectancy of the inheritance should be clearly identified and expectations set before the nuptials.
Avoid disagreements in a divorce.
If you are getting remarried due to a previous divorce, your are familiar with the strain of trying to come to an agreement in the division of assets.
This is especially challenging when emotions are high.
By taking the time to discussion division of property and the payment of alimony in advance, you can have these conversations when both parties are levelheaded and loving.
Protection from debts.
If you or your new spouse are entering the new marriage with debt, you can shield each other from these problems in the future through a prenuptial agreement.
When you choose to create a prenup, you and your fiancé should work with separate attorneys to represent you and should fully disclose assets and liabilities.
By having different attorneys, you may be able to protect yourselves from having your prenup declared invalid due to the appearance of forcing the other person to sign an unfair contract.
A few additional thoughts, based on some recent client experiences.
Most younger couples who are getting married are just beginning to build careers and wealth.
Nevertheless, the death of one could leave the other grieving and financially strapped.
I would recommend that their prenup include a requirement for each party to acquire a life insurance policy on the other after the wedding (i.e., when they have an “insurable interest”) to avoid the financial hardship for the surviving spouse being a widow or widower, even at a young age.
What if the couple separates or divorces, Kyle?
Well, in that case the prenup would require the spouses to make reciprocal “gifts” of the policies to one another so each owns his or her own contract.
No one wants an ex-spouse running around holding a life insurance contract on his or her life!
While we are talking insurance, those marrying or remarrying later in life should include a prenup requirement to have long-term care insurance (if still insurable).
Warning! The Medicaid folks in your state are not a party to the prenup and will consider the separate assets of both spouses when determining Medicaid eligibility.
This oversight has been a most unpleasant surprise to many couples entering marriage later in life.
As one client put it, all of the fellas I seem to meet these days are “looking for a nurse with a purse!”
Reference: FedWeek (Aug. 25, 2021) “A Prenup May Be Prudent for Later-Life Marriages”