I will be the first to admit that a prenuptial agreement (aka an "antenuptial agreement" or a "premarital agreement") is not as romantic as, say, a bouquet of red roses. In fact, it can be downright difficult and awkward to bring up.
While a "prenup" can be awkward in the moment, having one can help you protect everyone you love and everything you have when it counts most.
As I tell my clients, "Love may be blind, but it is best to go into marriage with both eyes open!"
I double-down on that advice when the marriage is a remarriage, especially when forming a blended family ... for the protection of all concerned.
Case in point: Shortly after the death of Robin Williams, his third wife and his children from a previous marriage were in court fighting over some of his tangible personal property assets.
Could this legal brewhaha have been avoided by an iron-clad last will or trust?
Certainly, proper estate planning legal documents can help, but experts recommend having prenups (and even postnups) to clearly make intentions crystal clear regarding property rights in the event of separation, divorce and upon death.
You can never have too many documents backing up your intentions and detailing your assets, as long as the documents themselves are not in conflict.
By the way, this is not a do-it-yourself project.
"The mess comes when you don't have proper estate planning," according to an attorney interviewed in a recent CNBC article titled “Remarrying? Shower kids with love, and a good prenup.” from CNBC. An important tool in that toolbox, he says, is a prenup.
So, again, what does a prenup accomplish? Simply put, a prenup details how assets would be split up if the marriage fails or a spouse dies.
One of the best features of a prenup is that it can protect nearly every kind of asset an individual may want to pass along, to include art collections, cash, and the family business. Without a prenup, it is easier for a spouse to obtain some unintended part of the estate if you die.
Although Robin Williams had a well-thought-out estate plan when he passed, which included a prenup and a trust for his children, some of his personal items were left out of the documents. Now, this lack of critical detail is causing a fight between his spouse and his children that may have been avoided.
Documenting every asset is necessary and hindsight is always 20/20.
For example, lists of paintings owned before a second marriage can be kept in multiple places. These lists can help demonstrate intentions. In fact, the more detail, the better!
Once a prenup is signed, it can be nearly unbreakable and is typically accepted by the courts.
The original article provides some practical particulars to keep in mind.
These particulars includes making sure:
- Both you and your future spouse understand the prenup. Also, each party should be represented by separate attorneys.
- You negotiate and sign the prenup well in advance of your wedding. A common mistake is signing the prenup the day of the wedding!
- After you are married, you are mindful not to commingle your respective assets. Why? Because the source of funds used to buy an asset will decided who owns it.
- Both of you communicate openly and honestly. The more communication, the less misunderstanding. Consider a family meeting to discuss your intentions for your estate.
If you remarry and form a "blended family" without a prenup inked well before you say "I do," then one of the risks you run is completely "disinheriting" your own children from a prior marriage. Do you really want to risk that?
Asset titles (and retitling), beneficiary designations and even ERISA laws (think 401k and profit-sharing plans) are the usual suspects behind an "unintentional" disinheritance. The solution? Before your remarriage, be proactive with your estate planning by carefully preparing a detailed prenup backed by rock-solid wills and trusts.
Consider this: All of your fears about initiating "the conversation" may be for naught. Your future spouse may be relieved when you initiate the conversation about a prenup. Why? He or she (or his or her parents) may have assets and relationships that need protection, too.
As you can see, it is critical that you consult with an experienced estate planning attorney if you are planning to remarry.
Read about more tips in the article and talk to your estate planning attorney sooner to help avoid costly court battles later.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri) and to download free tools to help you organize your estate, visit my estate planning website.
Reference: CNBC (February 12, 2015) “Remarrying? Shower kids with love, and a good prenup”