| One of the things that elder law attorneys do is work with people getting married and doing prenuptial agreements. When I represent someone in this situation, I can make sure that they are fully aware of what rights they have waived and what a prenuptial agreement can and cannot do. Recently I had a client in her late 60s who came in a little perturbed about a situation she was in. She and her husband were married three years ago and signed a prenuptial agreement before they got married. He had arranged for her to be able to live in the house for the rest of her life, but the balance of his estate (earned by his deceased wife) was being left primarily to a disabled son in a Special Needs Trust. She was concerned that she was not going to have enough money to live on for the rest of her life and wanted to know if she had any claims against her husband‘s estate when he died. I looked at the prenuptial agreement (while thinking in my head “why did you sign this in the first place?”). It was a fairly standard one – everything before the marriage that was hers is hers everything that was his is his. Generally, prenuptial agreements are enforceable as contracts and anyone who enters into one needs to know that. She wanted to know if he could disinherit her. And a simple answer is yes When someone signs a prenuptial agreement they are acknowledging that they are going to keep their own assets and our spouse is going to keep theirs. Only if we choose to, do we share. The rare exception is that the contract was entered illegally e.g. under fraud or duress. Otherwise, this is a valid contract and should not be entered into lightly. In fact, it generally is only entered into after full disclosure of each other’s assets, as was done in this case. So when she entered into this contract she knew what his assets were, she knew what her assets were and she knew that he was not going to be leaving her assets except for the right to live in the home. That was the time to crunch the numbers and renegotiate the terms of the contract. I’m generally not a fan of late in life marriage. In my opinion, marriage seems to make people feel that they have entitlements to each other’s property. The husband entered into this prenuptial agreement specifically so he would not have to share his property and allowing her to live in the house for the rest of her life is actually fairly generous. He also arranged to hold funds in a trust for any of the major repairs needed to be done on the house. She’s really only required to pay for utilities and taxes, which was, in my opinion, a major gift. My client needed to be realistic and adjust her expectations and I told her so. It is very reasonable for him to want to care for his children, especially a disabled one. I discourage marriage in later years because expectations rise with the “I do” and this is especially true if assets are unequal (I asked her why she entered into the contract if she was not happy with it. Her answer was vague, but I suspect she hoped that once she was married, she would be able to convince him to change his plans). This was a very bad idea! If you were thinking about remarrying, I suggest three things: 1) That you don’t do it! 2) If you insist on doing it that you enter into a prenuptial agreement 3) If you are entering into a prenup, that you have legal counsel before you sign on the dotted line so that you are prepared for what you’re likely to be looking at in the future with no expectations of it changing. Again, this is the time for number crunching. Also remember that this is a perfect opportunity to use an elder mediator to be a neutral to work out an agreement that both parties can live with – before they get married and have regrets. And don’t forget the elder law implications. Marriage changes your legal entitlements and qualifications to public benefits such as Medicaid or Veterans benefits. The Medicaid office will count both parties assets toward eligibility and they don’t care if you have a prenup because they are not a party to this contract. In fact, no one else, including any government agency such as the IRS is bound by it. Your lawyer should discuss all this with you. So if you are getting married, Congratulations. But follow my suggestions. It will make life more serene with all issues settled beforehand. |
