Silver Prenuptial Agreements for Later-in-Life Marriages
If you are getting married in your 50s, 60s, 70s or beyond, you may want to seek the advice of a family law attorney and draw up a Silver prenuptial agreement. That’s because you probably own significant assets, such as a home, rental property or business, and it’s a good idea to protect those assets should your later-in-life marriage end in divorce. Whether you are at the height of your earning potential, or just a few years from retirement, you’ll have fewer years to recover.
You may also have children or grandchildren from a prior marriage that you want to provide for, such as helping them pay for college, buy a home, or set up a business. It you should die without a prenup, your surviving spouse might have the right to claim a large portion of your pre-marriage property, leaving much less for the kids. It’s very hurtful and even devastating to a family whenever this happens.
Here is how a thoughtful, well-crafted prenuptial agreement can help those who marry later in life not only take care of each other, but also protect their assets in case of divorce, as well as provide for their children.
Protecting the assets you acquired prior to marriage
A Silver prenuptial agreement enables you and your new spouse to clarify and define the assets and debts each of you have coming into the marriage. Clearly defining your individual assets will help you preserve them, should your marriage end in divorce. Additionally, a prenup can cover expectations around future spousal support, contributions to property, and other financial matters.
California is a community property state, which means that all assets acquired during marriage, by either spouse, are community in nature. In the event of divorce, all community property must be divided equally. That rule doesn’t apply, however, if an asset can be traced to a separate (pre-mariage) property source, is acquired as a gift or inheritance, or earned while spouses are separated.
Tracing an asset source, however, is often difficult, expensive and can easily stray into legal Silver area. Having a prenuptial agreement in place can help avoid unnecessary misunderstandings about your finances throughout your marriage.
Providing for prior-marriage children
Getting a Silver prenup is especially important if you have children from a previous marriage and want to pass some of your assets on to them. You’ve probably heard at least one story about a person who died, and all of their assets went to their new spouse and potentially the new spouse’s children. Often, the person who dies first believes that their wife or husband will take care of their children, as they would. Life happens, however, and the first marriage children may never receive anything, without a prenuptial agreement.
There are many ways a prenuptial agreement can help you provide for the children of your previous marriage and prevent their disinheritance. For example, you can use a prenuptial agreement to clarify which of your assets will go directly to your children, rather than your new spouse, whenever you die. Your agreement can stipulate that your assets will be put into a trust to be used by your spouse while they are alive, and the remainder pass on to your children after your spouse’s death. Your agreement can ask your new spouse to waive their rights to your retirement accounts, so that any moneys left after your death will pass on to your children. Your agreement can state that you will obtain life insurance to secure an inheritance for your children, so you can protect your new spouse with your assets.
A prenuptial agreement can also help you care for any children who need financial support in the present. You and your new spouse may agree, for instance, to create an asset pool of a certain amount that will be available to your children each year.
Should you tell your adult children about your prenup? It might be a good idea to let your kids know that you have entered into a prenuptial agreement, without divulging specific details. By assuring them that you are thinking about their financial wellbeing as you enter into marriage, you’ll build goodwill and trust within your new extended family.
Addressing possible nursing home costs
Can a prenup help avoid the significant costs of you or your spouse needing to stay for an extended time in a nursing home? The short answer is, “No.” Spouses are financially responsible for each other’s nursing home costs, and they cannot avoid that responsibility through a prenup.
To help cover any future nursing home care costs, as part of your marriage estate planning, you may want to consider purchasing long-term care insurance. You could also buy life insurance to help pay for the care you or your spouse may need in the future. The obligation to purchase long-term care or life insurance can be a part of your prenuptial agreement.
Contact me for assistance
If you are entering a later-in-life marriage and think that a Silver prenuptial agreement might be beneficial, please contact my office for a consultation. As a San Francisco Bay Area family law attorney who also holds a Master of Laws in Taxation, I have worked with many couples who wish to protect their pre-marriage assets in case of divorce, as well as leave a fair inheritance for their prior-marriage children and grandchildren.
Attorney Christina Sherman is a Marin County CA family law attorney and Certified Family Law Specialist, specializing in divorce, child custody and support, marital contracts and other family law issues.
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