Second Marriages – Issues in a Pre-Nuptial Agreement
It is always highly recommended that a couple getting married for a second (or third) time enter into a Pre-nuptial Agreement.
First, if you are seriously contemplating marriage, you need to be able to discuss the financial and legal issues that arise. These issues affect your present, your future and your family when you are no longer here.
The issues break down into three primary categories:
1. Financial issues concerning day to day living. This may seem nit picky, however, if not addressed up front, it can be the root of many problems down the road.
Whose house are you going to live in? Will the owner pay the taxes? The maintenance? The repairs? If these are going to be jointly paid, will the non-owner acquire an ownership interest in the home?
How will food, vacations, transportation and vacations be paid for? Will there be a joint account into which you place money for the payment of these joint bills? or will each party bear the responsibility for his/her own expense?
What about the house you will live in? What will happen to the house when the owner dies? If, for example, you both decide to live in one party’s home, but he/she wants his or her children to inherit the home upon the owner’s death, putting the house in joint names is not an option. However, how long should the survivor be permitted to live in the home prior to being forced to move? Should the survivor have a life estate? Could that tie up the home too long?
2. Death of One Party. This is addressed in a Pre-nuptial Agreement for several reasons. While the parties can agree that they will not be providing for one another at death, and then prepare Wills that give their assets all to their respective families, the law does not presume that an individual can disinherit a spouse.
Therefore, if there were no Pre-nuptial Agreement and the decedent’s Will totally disinherited the survivor, that survivor could then go in and challenge the Will and insist on getting the survivor benefits available to a spouse without a Will.
If on the other hand, there is a Pre-nuptial Agreement, this statutory benefit can effectively be waived by the parties.
3. Divorce. No one gets married with the anticipation of getting divorced. It does happen. Best to address this issue in a Pre-nuptial Agreement.
A usual arrangement for a second (especially later in life) marriage is to state that each takes away what they came in with. Anything acquired jointly is to be split.
While the discussion may initially be uncomfortable, a Pre-nuptial Agreement is a very necessary component of a second marriage.