Q. I have been a widower for six years and recently found love again. I asked her to marry me and she accepted. This is new to me, as I had been with my late wife for forty years and then on my own again until recently. What are some things that you would suggest that my fiancée and I address when it comes to estate planning, prenuptial agreements, retirement accounts, and other areas, before we get married? Thanks for your help!
A. Congratulations on finding love again and on your upcoming nuptials!
A couple of months ago, many of us watched “The Golden Bachelor,” where Gerry Turner, 72, found love with Theresa Nist, 70. The happy couple (and you and your future bride) show that it’s never too late for love—and remarriage. And, when it comes to taking another chance on love, you are not alone!
Remarriage rates for middle-aged and older adults are generally pretty high. In fact, 80 percent of the people who divorce remarry, according to the Pew Research Center, especially those aged 55 and older. Want to make that second marriage last? Studies show that meaningful conversations and planning in advance tends to lead to higher marital well-being.
What to Do Before Heading Down the Aisle
The older you are when you remarry, the more likely it is that you’re bringing assets into the marriage, including retirement savings, life insurance policies, investment accounts, real estate, and more. There often can be family heirlooms or other belongings, as well. And, later-in-life remarriages often come with many people and expectations to manage, including ex-spouses, adult children, and aging parents. These things make an updated estate plan, knowledge of your Social Security benefits, and a prenuptial agreement critical before you head down the aisle again.
Here are some things you should do with your betrothed, many with the help of an experienced estate planning attorney acting as a mediator:
- Communicate: Experts often recommend discussing your goals with not only your spouse, but your children as well (if either or both of you have children). These are some things to do and address:
- Take an inventory: The first thing you and your partner should do is each make an inventory of your assets and debts and share it with the other person. Don’t forget to include life insurance policies and retirement plans. It is important to be open and honest about money from the get go if you want to prevent bad feelings in the future.
- Decide how you want to handle finances: Once you know what you are dealing with, then you need to decide if you want to combine (or not combine) assets when you are married. If one partner has significant debt, you may not want to combine finances or make any joint purchases. These decisions need to be made upfront so everyone is clear on what to expect.
- Decide what you want to happen when you die: You and your future spouse need to figure out where each of you wants your assets to go when you die. If you have children from a previous marriage, this can be a complicated discussion. Managing expectations can help avoid discord between your partner and your children. Remember, there is no guarantee that if you leave your assets to your new spouse, he or she will provide for your children after you are gone. Even if you don’t have children, there may be family heirlooms or mementos that you want to keep in your family. Again, open discussions can prevent problems in the future.
- Sign a Prenuptial Agreement: It’s vitally important for couples who are beginning a second or subsequent marriage later in life to have a prenuptial agreement in place, not so much to cover what happens in the event of divorce (though that will be covered), but more so to cover what happens in the event of death. As traditional wedding vows say, you are of course intending to stay married “till death does you part,” and the focus of a premarital agreement in a later-in-life marriage is to cover exactly what happens to your assets when the first one of you dies. This is where things get complicated because there is a natural desire to provide for your new spouse if you die first competing with your natural desire to provide for your adult children. Unlike most first marriages, people getting married later in life often bring significant assets to this marriage that have taken decades to accumulate. You need to decide together what your intentions are for the use of funds while you are living together and when one of you dies before the other, and if you get divorced, though again divorce is never the focus of this type of premarital planning. The focus of this type of premarital planning is what happens to your estate when the first one of you dies, which is why this type of premarital planning should usually be done with an experienced estate planning attorney and/or an experienced elder law attorney, acting as a mediator to ensure that all the appropriate issues get addressed.
- I, Evan Farr, as an experienced estate planning attorney and an experienced elder law attorney, routinely work as a mediator with older couples planning to enter into a second or subsequent marriage, with the goal of addressing all the important issues and then ultimately preparing the prenuptial agreement as a mediator (which the parties can then bring to attorneys of their own choosing if they desire) and then usually preparing the subsequent estate planning documents (such as wills and trusts) for the couple once they are married, which most of the time need to be changed based on the terms of the prenup. Learn more here and contact the firm to make an appointment. Read today’s Critter Corner for more information on this subject.
- Update Account Beneficiaries: One easily overlooked item after people remarry is updating beneficiaries on retirement accounts, life insurance policies, and more. Whoever is listed as a beneficiary will typically get that money when you die. Please read my recent article, More Problems with Beneficiary Designations — Usually Beneficiary Designations Take Precedence Over Your Estate Planning Documents, But Sometimes They Don’t for more details.
- Think about Social Security Benefits: Remarriage can affect any benefits you are collecting on the record of a deceased or former spouse, including Social Security. If you are age 62 or older and were married to your ex for at least 10 years, you may be able to collect monthly payments equivalent to about one-third to one-half of your former spouse’s Social Security benefit, as calculated from their lifetime earnings history. If you are widowed and remarry at age 59, you could lose your survivor benefits. But if you wait until 60, you may still be entitled to benefits on your former spouse’s Social Security earnings record.
- Make Sure You Have an Up-to-Date Estate Plan: One of the biggest problems that happens in marriages is when one spouse dies, the other has difficult decisions to make on their joint estate. In addition, in subsequent marriages, chances are pretty high that each of the spouses have children from other relationships. These are reasons why a second marriage requires that the parties engage in estate planning and make necessary updates. Failing to update estate planning can have dire consequences, such as the proceeds of policies going directly to an ex-spouse despite the status of the relationship.
- When there are children involved, it’s important to consider any provisions you’ve already made for them in a will or trust and how that might affect any assets your spouse stands to inherit. You may need to update your will or trust to ensure that your spouse receives the share of your assets you wish them to have while still preserving your children’s inheritance.
- Remember to update legal directives — such as your power of attorney and advance medical directive — to make sure that they are current and express your wishes.
- Be sure your assets are protected with a revocable living trust to avoid probate, or with a Living Trust Plus® irrevocable asset protection trust to avoid probate plus lawsuits plus nursing home expenses that can be paid for by Medicaid.
- Consult an experienced estate planning attorney: Even if you don’t have a lot of assets, you should consult an experienced estate planning attorney. Ex-spouses, blended families, and co-mingled assets make second, third, or even fourth marriages complex, as does a child with special needs or an aging parent. It is wise to invest the time and money in getting a thorough estate plan drawn up by a professional, such as the estate planning experts at the Farr Law Firm.
Estate Planning is Important for ALL Families
With expert estate planning and, when appropriate, expert asset protection, every individual, including those getting married later in life, can retain their accumulated assets while still providing for their new spouse and the needs of their child(ren). If you or members of you family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment:
Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797
About Evan H Farr, CELA, CAP
