Chapter 2-3 Premarital Agreements

• Jurisdiction: United States

2-3 Premarital Agreements

In most cases, the elderly person who marries is going through his or her second or third marriage—if not fourth or fifth. Any marriage beyond the first raises many concerns. When such a marriage involves an elderly individual, the number of issues the parties must consider is greatly multiplied. Unlike young adults who are just starting out in life, elders have commitments to honor—children from previous marriages and relationships, maybe grandchildren, perhaps significant savings and investments, friends and social groupings and clubs of which they are members, and, of course, treasured memories. While the love and companionship that can be found in a new spouse and a new marriage are of great and immeasurable value, so, too, is devotion to one's former family—children, grandchildren, even ex-spouses, if any. The senior citizen must go into that next marriage with her eyes wide open, aware that she is empowered to address the issues and find the solutions before marrying. Should she seek the advice of an attorney to prepare for marriage, the attorney should carefully consider the contents of the next few sections of this chapter as he or she counsels the senior on moving forward.

2-3:1 Consider Financial Issues

While it is true that the senior's significant other—particularly if she is much younger than the senior—may consider a discussion of financial issues as disconcerting, offensive, or "tacky," it is essential that the couple discusses them before they get married. It is better to discover the parties' respective attitudes toward money and family before they get married—even if this means they might not get married at all—than to get married and then find out that they are polar opposites as far as these issues are concerned. While such a discussion would not be a romantic one, it would be a vital one to have.

What, then, should the discussion include? Certainly, it should include the following topics:

1. Where will the couple live?
2. Who will pay the living expenses?
3. What debts does each party have?
4. When will the married couple take a vacation? Who will pay for it? Will the expenses be split down the middle?
5. Will each party pay for each other's nursing home bills if that day arrives?

This discussion—or rather these discussions—should be had outside the presence of the attorney. After the couple has discussed them to the fullest, if they still want to be married, the party who has retained the attorney's services may return for further legal counsel.

2-3:2 Consider Legal Issues

A discussion of financial issues should lead to a discussion of related legal issues. Among these should necessarily be:

1. whether the spouses will create a community estate out of their current separate estates;
2. whether their investment income will be community or separate property; and
3. whether each other's estate will be taxable.

Full resolution of these legal issues and a mutual understanding of these questions will lead the couple either into a closer marriage or to teach them that it is better that they not marry. If, however, they feel that they should marry, they should retain the services of an attorney to help them draw up a premarital agreement. While they may be tempted to settle upon a loving, trusting verbal understanding, they should not do any such thing. Such an understanding would not be binding and would crumble after the honeymoon ends. What the couple needs is a loving, trusting, written contract that will be legally...