Ask the Lawyer
Q: I am 55 years old, recently widowed and thinking about getting married again. Should I have a pre-nuptial agreement? – Nervous Groom
A: Dear Nervous. Pre-nups can be ‘romance killers.’ But if you don’t have one you can be exposed to a personal financial and estate plan wrecking ball.
For community property states (and the nationwide trend is moving to no fault Community Property principles) that means a couples’ assets are typically divided in half upon dissolution regardless of circumstances. Couples who wish to have an unequal division of property should enter into a pre-nup to make sure than happens.
Divorced or widowed seniors typically have more assets than younger people and they also have more financial commitments. There is a lot at stake. Portfolios have shrunk in recent years because of the economy. It’s best to sit down with your future new spouse and carefully go over your finances and your expectations.
Another concern: are you jeopardizing pension or government benefits with a new marriage?
Another major reason you want to think about a pre-nup is your estate planning concerns. If you re-marry, don’t have a pre-nup, and don’t have a will or trust either, a major portion of your estate could very well go to your new spouse — and significantly short change your own children from a previous marriage.
The sad fact today is that the national divorce rate is about 60%. Marrying late in life is no guarantee that relationship will last. Another sad statistic: the increasing divorce rate for long-term (20 year plus) marriages.
Most states permit folks to enter into a pre-nuptial agreement, essentially a contract about all your property prior to getting married. There are a number of hoops you have to jump through. Some include the fact that each side should be represented by an attorney even if the other spouse only retains an attorney to read and review the agreement. Otherwise the agreement might be voided.
If you don’t think a pre-nup fits your situation, then you might want to consider a co-habitation agreement.
More boomers — afraid of the unknown — are opting to live together without getting married but you should have a good understanding of what each person expects if you do decide to live together.