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PRENUPTIAL AGREEMENTS – Do You Need One If You Are Not a Movie Star?
By Liz Perry
In the past, if you were a typical middle-class couple, all you needed in the way of estate planning was a Community Property Agreement, two Wills and two Durable Powers of Attorney and you had all the estate planning you needed. "Pre-nuptial Agreements” were reserved for the wealthy who had large estates. With second marriages becoming common, the "Pre-nuptial Agreement” has become an important planning tool for the middle class also.
There are two major issues that might motivate you into entering into a "Prenuptial agreement”. 1) You want to protect your assets in the event of a divorce and/or 2) you want to provide for your children from a first marriage.
The first concern, protecting your assets in the event of divorce, applies whether you are in a first or second marriage but is a hard issue for any of us to deal with emotionally when we are preparing to start a new life with a beloved. It involves facing the possibility that a pending marriage may not be the successful "until death do us part" affair that everyone hopes for. Understandably, it takes a cooler head than most of us have to make any contingency plans for our marriage not working. In fact, it seems to be tempting fate and decidedly unromantic to even think about that possibility.
Realism triumphs over romanticism more commonly in the second marriage situation especially if you have gone through the agony of dividing assets in an earlier divorce. If you have already been through a divorce, you will often be highly motivated to avoid the trauma of property division if your second marriage does not work out as hoped.
The second concern, protecting your children’s interest after your death, is an emotionally easier subject to discuss with a potential spouse since they may want to protect their children’s interest too.
As a practical matter, in a first marriage, protecting your children after the death of your spouse is often not a concern because you are usually confident your surviving spouse will take care of your children. However, in a second marriage, if you leave everything on your death to your new spouse your children may receive nothing. Your new spouse will probably have loyalties of his or her own which often enough do not include your children if you die first.
Horror stories concerning people's failing to plan after a remarriage are common. One particularly poignant example involves a couple who farmed all their life, the husband died, the wife remarried a new husband and then his children ended up inheriting the farm. The children of the couple who worked all their lives on the land received nothing.
A more common dilemma presented by a second marriage is the situation where your primary asset is your home. It is probably a home you and your first spouse worked hard to acquire.
If you remarry a person of lesser means who does not have a home, you naturally want to take care of your new spouse if you die first. But you also want to make sure that the home you have worked hard for goes to your children when your new spouse no longer needs a home.
In an instance such as this, a "Pre-nuptial Agreement” can be helpful to deal with providing your second spouse a place to live but ensuring after he or she dies that the home passes to your children.
Even if you do not sign a prenuptial agreement, it is very important to get good estate planning advice when you get married for a second time. Let's take a look at what happens if you own a home before marriage, get married, do no estate planning and then die. Under Washington law, if you die without a Will, the Legislature provides that your surviving spouse gets all of your community property and one-half of your separate property. In the above example, your house would be your separate property, since it was acquired before the marriage, and your surviving spouse would receive one-half of it. With some good planning, you could have provided for your spouse to have the use of the home during his or her life. But you could also provide that the home will go to your children on your spouse’s death.
Before leaving the subject of estate planning in a second marriage situation, it is helpful to look at a common pitfall. A trap for the unwary is that Washington law provides if you do not sign a new will after you marry, your new spouse will be entitled to all your community property and half your separate property. This happens even if you have a will you signed before your marriage which leaves everything to your children. The Legislature's thinking is that it must have been an oversight for you not to have prepared a new Will with provisions for your new spouse. It is important then, always to sign a new Will after a remarriage, which acknowledges the existence of your new spouse, even if the new Will continues to leave your estate to your children.
One thing to be aware of is that if you have already married without doing a "Prenuptial Agreement”, you can always remedy the situation by entering into a "Post-nuptial Agreement”. In either case the law holds that to prevent either party from taking advantage of the other, each party needs to consult with their own attorney.
If you believe a "Pre” or "Post-nuptial Agreement” would help you achieve your goals, you should consult with an attorney knowledgeable about the different issues involved.
As a final consideration, a "Pre” or "Post-nuptial Agreement” can have a powerful psychological advantage as well as a legal impact. This is because the integration of your new spouse into your family group may occur more amicably if all parties involved know that the property implications of the new marriage have been dealt with fairly ahead of time.
Elizabeth A. Perry has been helping Clark County residents with their estate planning since 1976. Her practice emphasizes estate planning, guardianships, probate, and Medicaid planning. You are invited to call her to schedule an appointment or sign up for a class at 816-2485.
(The above should not be construed as specific legal advice and is intended for general information purposes only.) | 
