Pre-Nuptial and Post-Nuptial Agreements: Is it too late to get it in writing?

Phillip G. Gubler and Thomas J. Bayles, attorneys at law

 

            You just got married— for the second time.  While everyone is congratulating you on finding love again, your children are disappointed you did not enter into a Prenuptial Agreement before your marriage.  Your new spouse’s children likely share similar concerns.  You and your new spouse are adults; you have a verbal agreement about paying bills and handling your estates.  Why are your children so concerned about your new life?  Are they overreacting? 

            Many who have experienced a parent in a second marriage attest that it’s a time of excitement.  They hope their parent will be happy and enjoy companionship yet there are many underlying concerns that can be a white elephant in the room during conversation.  Will I still inherit my mother’s rocking chair?  Or will it be mistaken by the other side of the family for their great grandmother’s?  In order to avoid further turmoil at the time of a parent’s death there are practical matters that need to be considered.  For instance, each partner will bring assets and debts to the marriage.  You may both own homes and need to decide in which home you will reside.  There will be questions about taxes, upkeep, and whether the new spouse will continue to live in the home after you pass away.  Children from a previous marriage may feel threatened that their perceived “inheritance” will go to the new spouse or the new spouse’s children.  In addition, the new spouse’s asset to debt ratio may not be favorable and you may not be in a position to pay your new spouse’s debts.  Your children’s concern may be that your assets will be depleted paying for debts that were not incurred by you.

One way to keep each party’s assets and premarital debts clearly separate is by entering into a Prenuptial Agreement before marriage.  While that may be the recommendation from the legal community and your children, a Postnuptial Agreement is another way to delineate each party’s assets to keep them separate.  Prenuptial and Postnuptial Agreements, like any contract, must be clearly written.  They are voluntarily signed by both parties, and indicate there has been reasonable disclosure of the property or financial obligations of the other party.  Litigation related to Pre- and Postnuptial agreements almost always centers on whether the terms of the agreement are clear, the agreement was signed voluntarily, and if the disclosure was reasonable.   For this reason, we recommend that each party review such agreements with their respective counsel.

            Congratulations on finding love again.  Let us help you preserve the peace in your home and newly extended family.  Whether you are planning to marry again or have already remarried, it is not too late to get it in writing. 

The attorneys at JensenBayles, LLP provide a broad spectrum of legal services.  Thomas J. Bayles has been actively providing advice in the areas of trusts, wills, probate and tax planning in the St. George market for over 15 years. Please visit our web site www.jensenbayles.com or call 435-674-9718 and ask for Thomas J. Bayles or Phillip G. Gubler