Keeping It Separate

Contributed by Caroline Currier 

Finding love again is an exciting time in someone’s life.  However, blending families often brings its fair share of struggles.  This article highlights the legal challenges associated with new marriages and recommends two strategies to ease this transition.  Although these issues are especially relevant for individuals age 65 and older, they will also be applicable to individuals of all ages who are entering into a second or third marriage.

Prenuptial Agreement

A Prenuptial Agreement (“Prenup”) is a legal agreement which is made between two parties in contemplation of their marriage, and specifies the wishes of each party to the marriage with regard to various items such as property, income and more.

A Prenup will protect each spouse’s legal interest in their separate property in the event of death or dissolution of the marriage.  The Prenup should be thorough and anticipate a variety of circumstances that might arise in the future. The prenuptial agreement should be carefully drafted to make sure that it is fair to both remarried partners. There are three major items that every Prenup should include.  First, the prenup should protect the new partners’ respective children from losing their inheritance to a new partner or step-siblings. Second, the prenup should require both spouses to make sure that any new estate plans will not disturb the provisions of each spouses’ existing trusts.  Third, the Prenup should require each second-marriage spouse to create comprehensive powers of attorney, to avoid guardianship proceedings if either spouse became incapacitated.

It should be noted that a prenup should also consider the possibility that second spouses might someday become ill or incapacitated and might need Medicaid benefits to fund long-term care at a nursing home. However, the federal government is not required to recognize prenups and, regardless what the prenup says, can count some of a spouse’s income and assets against both spouses when it comes to nursing facility care.  For more information on this topic, read another article on this blog entitled “The Blunders of a Blended Family.”

Separate Estate Plans

You should also encourage your loved one to update or get a new, separate estate plan.  We often advise couples in their second or third marriage on how to design an estate plan that will meet all of their unique goals. Many times, an individual has an existing Joint Trust with their first spouse who has since passed away, which likely leaves everything to that couple’s children after the death of the surviving spouse.

In the beginning of a new marriage, that surviving spouse might stay true to their former spouse’s wishes and keep the same plan in place.  However, over time, the newly-married couple might buy a new house, combine their bank accounts and acquire new properties together.  The couple may then find that it is more practical to just create a joint plan and split everything between their children equally. After the death of the first spouse to this new marriage, 100% of the couple’s assets could be considered “his” or “her” own separate property.  This might not lead to a “fair” or desirable outcome for each spouse’s respective family members.

Further, we often find that after the death of the first spouse to this new marriage, the surviving spouse will then amend the plan again, leaving 100% of the couple’s asses to their spouse down the road, or 100% of what is now “his” or “her” property to their children alone, leaving the children of the first spouse to pass away with nothing.

Many individuals are often afraid to have these conversations with their parents out of fear that initiating this conversation will cause them to appear “greedy” or “invasive,” however, a Prenuptial Agreement and a separate Estate Plan can provide some basic protection to your loved one and your family’s estate.  Therefore, those looking to enter into a new marriage should consult an elder law or estate planning attorney (depending on their age) to determine what the best plan might be to meet the needs of the spouses and their respective families.