Marriage Later in Life
Anytime two people get remarried and there are children from a previous marriage there needs to be consideration of how your estate plan will function with your children and your new spouse. Your estate and assets were built over time with a previous spouse, or on your own with the intention of your estate going to your own children, and that is probably likewise true with the new spouse and what they have built on their side.
The legal solution to ensure protection for your estate and that the assets are directed where you choose upon your passing is a prenuptial agreement. A prenup is not to just to protect in a divorce, while you can use a prenuptial agreement for that purpose, it is not the primary purpose in this case. The main intent in this case, is to prevent the new spouse from inheriting all of what you have. Certainly you can provide for them, or leave them an inheritance if you should so choose, but without a prenup in place, they may get much more than you want to give.
Wouldn’t a will do that?
No, because there is something a called the spousal right of election. You can disinherit anyone in the world; children, siblings, parents, cousins, etc… but you cannot disinherit your spouse. Assets while married are marital property, hence half theirs. If you create a will that purports to disinherit your spouse, the spouse can go to court and claim right of election and the court will rewrite your will to give half to the spouse. The only way to prevent this is with a prenuptial agreement before the marriage.
Another consideration with marriage at an advanced age, is catastrophic illness. Once a major illness takes place, and long-term or nursing home care is required, a question arises regarding what spousal resources are considered as income and assets. When a pre-nuptial agreement is in place dictating that each are financially independent of the other, a spouses assets are not considered for qualifying for services such as Medicaid.
The prenup should allow the parties to make their own estate plans however they want. So you could, in effect, leave all your property to your kids, divide it how you see fit, grant your spouse rights to live in the property, and dictate your own desires based on mutual agreement with your betrothed.
What if you’ve already gone and done it? Post-nuptial agreements.
A post-nuptial agreement will serve the same purpose, and the sooner it is done the better. It is important to approach this subject as not as issue of trust, or faith in the marriage, or even a commitment to each other. But that because you are committed to your spouse, and because you have such deep love for your spouse, you want to ensure that both of your assets are protected, and that both of your families are secure.
If you have additional questions about creating a prenuptial agreement and live in the state of New York, don’t wait to get good advice. Initial consultations are FREE. CONTACT US ONLINE or call our office at 1-800-471-4730.
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