By Marla Brill
Prenuptial agreements used to be seen as a planning tool for the extremely wealthy, or for aging men seeking to protect their assets from much younger wives. But with “gray divorce” on the rise and longer life expectancies people from a variety of backgrounds going into second or third marriages often rely on them as a way to clarify distribution of assets accumulated over many decades.
For people marrying later in life, a prenup is especially important because they can:
Keep assets separate. Provisions can provide that each spouse’s separately owned property remains separately owned after the marriage. This provision can also apply to property or inheritances acquired during the marriage. Or, you can specify which property becomes marital property and what remains separate.
Keep debts separate. Without a prenup, creditors can sometimes attach marital property even if just one spouse is responsible for the debt. An agreement can define who is responsible for specific debts and limit liability for a debt a spouse acquired before the marriage.
Clarify inheritance issues. A prenup is critical if you want to make sure property goes to children rather than a new spouse, or vice versa. It can also specify that property goes to a surviving spouse, but that the children inherit it after his or her death.
Define a living situation when the first spouse dies or goes to a nursing home. When older couples marry they often live in a home that one spouse owns. If that person dies or goes to a nursing home, adult children may force the remaining partner out. In another common scenario, the non-owning spouse tries to remain in the home years after adult children of the deceased owner wishes to sell. A prenup addresses how long, and under what circumstances, the non-owing spouse can remain in the home.
Outline what adult children are entitled to during the marriage. Even if they’re financially independent, many adult children need financial help from their parents from time to time. Resentment among couples can build if one partner appears to be lavishing money on adult children while putting a spouse on a tight budget. A prenup can cover gifts to adult children or even specify a household allowance.
Laying out the ground rules
A prenup can also cover a variety of other financial issues, such as whether you file tax returns separately or jointly, how you handle credit card debt during the marriage, who gets what in the event of divorce, and how household bills are paid.
Non-financial issues may also come into play. Not all lawyers recommend negotiating lifestyle issues in a prenup, since they aren’t binding in court. But if you want to include them, it’s important to look at each other critically and decide what might eventually drive you up the wall. While the dozen rescue cats a fiancee keeps in the backyard may seem charming now, the expense and smell could be a deal breaker in five or six years.
READ ALSO: Getting Re-Married: How Are Assets Affected?
To avoid unpleasant surprises, experts recommend signing a prenuptial agreement at least two to four months before the wedding. And to protect each party’s interests, each partner should have a different attorney. While a prenuptial agreement is not cheap, costs need not be prohibitive. If the issues are fairly straightforward an agreement shouldn’t take more than three or four hours or so of an attorney’s time.
What if you’re not getting married?
Although some couples age 50 and older marry many live together instead, sometimes for many years. While such arrangements can certainly avoid many of the financial tangles that go with marriage, there can still be complications in the event of a breakup.
To avoid them, some attorneys recommend a “cohabitation agreement” or “living together agreement.” Such an agreement can address issues such as who leaves the residence if a breakup occurs, division of expenses while living together, and distribution of property at death. While they may not be romantic both prenuptial agreements and cohabitation agreements can help avoid financial headaches, if not emotional heartaches, down the road.
About the Author
Marla Brill has been a personal finance journalist for over 30 years. A former editor at Kiplinger’s Personal Finance, she has written about money topics for Reuters, The Boston Globe, Financial Advisor Magazine, MarketWatch, PBS’s NextAvenue, and other publications.