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Jewish World Review August 14, 2007 / 30 Meanachem-Av, 5767 Second marriage brings sticky financial concerns By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: I am a 65-year-old widow, and I plan to marry a man 18 years my junior this fall. He was divorced, is now going to technical school, is not employed and is recovering from bankruptcy. While I have been counseled to get a premarital agreement, I have not brought it up with him because I am afraid that this will hurt our relationship. While I do want to make sure my children receive their fair share, I don't want to give anything away because I may end up needing it, and I want to make sure that my husband-to-be does not take advantage of me. My largest assets are a rollover IRA from my late husband's retirement account, my home where we will live and some investments. Is there some way for me to transfer my assets to a trust and get a will prepared that protects me and my children without a premarital agreement? A: The fact that you fear a discussion about finances will ruin your relationship seems to be a grim prognostication of a potentially disastrous situation. Given your fiance's poor economic history, we don't blame you for trying to keep assets away from the man you intend to marry. Your options, however, are somewhat limited, and, to a large extent, depend on the law where you live. Although premarital agreements are certainly not for everyone, sometimes they are necessary, not only to spell out what happens in the event of a separation or divorce, but also in case you predecease your new spouse. We believe you need one here. That said, if you can't deal with it, there may be ways to position your property, but the planning process — which, again, depends on the law of your home state — is much too complex to be fully developed in this column. In some states, for example, if you transfer assets into a revocable trust to try to keep your spouse from getting part of your estate, the courts may well look through the trust as though it did not exist because you still have control of the assets. On the other hand, if you transfer assets into an irrevocable trust, you may be able to keep these assets away from your spouse when you die, but you would lose all control over these properties during your lifetime and you might trigger unexpected taxation problems. A good middle ground may be to consider including in your will provisions concerning what is called a qualified terminable interest property trust (QTIP). This type of planning will allow you to give your spouse an income interest in certain property throughout his life and direct where the balance goes upon his death. In this way, you will be able to not only retain control over the final disposition of your family assets, but also make sure your children are protected — even if your second spouse remarries after your death. Be aware, however, that none of these techniques applies to your nonprobate assets — that is, your IRA — which requires special planning. Taking the NextStep: Since marital deduction and other tax-related issues may be involved, depending on the size of your estate, you should not even think about doing this type of planning without the help of a qualified estate planner, especially if your largest assets are IRAs. Ask your intended to provide you with his latest credit report. And you might want to go to the courts where his divorce and bankruptcy filings can be found to learn more about him and his financial dealings. While companionship is important to all of us, at 65, you don't have the time to rebuild your nest egg should it be lost. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2007, Jan Warner

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