Q (from Ohio): In preparation for our upcoming marriage the second time for me at age 64 and the third for my future husband, age 71 we read up on premarital agreements in books and on the Internet and then went to a lawyer. Not being satisfied, we have now been to four lawyers, each confusing us more. Their advice runs the spectrum from unnecessary to simplistic to complicated. We each have assets, are retired, and have children from our prior marriages. While we love each other, we want to make sure our children are protected and our agreements are enforced. We seem to have run out of ideas about how to put our plan into action. What is the next step?
A: Of late, we have received a growing number of questions about premarital agreements from folks in their 60s, 70s and 80s who are in the process of entering second, third and even fourth marriages. First and foremost, it is essential to find lawyers who are experienced in preparing these agreements. We say "lawyers" because each of you should be represented independently. Unless, of course, one of you waives the right to an attorney a real "no-no" from our perspective.
One lawyer who tries to represent both of you in the negotiation and preparation of a premarital agreement will have a conflict of interest that may well void the agreement later. Experienced lawyers will generally prepare six or more of these agreements each year.
Once you have each found a lawyer, here are some of the basics that should be included in any premarital agreement:
1) Statements of the circumstances under which the agreement is entered, the purposes of agreement, and anticipated contributions by each of you toward living expenses and other expenses. In this way, should the agreement later be the subject of litigation or arbitration, the judge or arbitrator will be in a better position to understand your intentions, find the agreement to be fair and avoid ambiguities.
2) Your lawyers should be identified or, if one of you has waived the right to have a lawyer, the conditions and circumstances regarding the waiver of this right should be described specifically.
3) The premarital property each of you brings into the marriage should be listed and defined clearly, as should such things as planned disposition of assets, how you will treat increased (or decreased) value of this property over time and what will happen to income earned from premarital property.
4) Each of you will have to make full disclosure of assets, liabilities and income by way of financial statements, tax returns and other financial data that should be attached to the agreement.
5) There should be definitions of "marital" property and how you propose to dispose of it, and the income earned by it, at death or divorce.
6) Whether there will be spousal maintenance is an important question. If both of you waive future support without knowing the conditions that may exist at that later date, there may be enforcement problems should one of you become destitute.
7) Life insurance and retirement plans must be addressed. Since these assets are distributed according to beneficiary designation and not according to your wills, there should be verification provisions available so that each of you can go directly to the insurance company or plan administrator for information about the policy or plan.
8) Due to our mobile society and the potential that there may be a choice of state law, you should choose which state law will apply to the agreement. The agreement should be sufficiently flexible to deal with any move.
9) Because part of the agreement could be declared unenforceable, the document should contain language about severing these provisions.
10) You should include procedures by which the agreement can be modified or canceled or even phased out over time, depending on your desires.
11) Estate planning and long-term care planning documents should be prepared and attached to the agreement. Long-term care insurance should be a part of the plan because no matter what agreement you enter into, it is not binding on anyone but you, and it will not avoid the obligation for each of you to provide for the other's necessities.
Taking the NextStep: Due to space limitations here, we suggest that you find professionals who can help you accomplish your goals.