Ask the Experts

Home: Second Weddings: Legal Issues:
Prenuptial agreements vs estate planning

kay
Novice

Post #1 of 8 (5361 views)

Prenuptial agreements vs estate planning

I have all kinds of questions....

but here are my concerns...

Prenuptials vs estate planning

my FH has two children and I have none. I have a house. he does not.

since he had no plans to get any major assets until we met and I changed his way of thinking and saving etc... I think that after we get married, which is a few months from now we should have one of the above.

Personally I don't think that my hard work should go to his children.

Additionally we might be moving to another state in the next year (from FL to VA) where should the legal papers be drawn up.

I may have to sell my house in the move and give some of the moneys to the new house but will keep the balance seperate.

what is the default law if none of the above is done ( in reference to current wife and step children)

(This post was edited by the_admin on Feb 23, 2005, 10:47 AM)

Legal
GettingRemarried.com Legal Advisor

Post #2 of 8 (5354 views)

Re: [kay] new .....help [In reply to]

Can we get the following clarifications:

YOU SAID: Personally I don't think that my hard work should go to his children.

-----> Do you mean your premarital assets; your premarital assets and
his assets accumulated during the marriage (depends upon whether in a
community property state or not) or all assets because he wouldn't have
had any were it not for you changing his ways??

YOU ASKED:Moving to new state in a year .... Where should papers be drawn up

----->if you decide on a prenup it should be where they you are living when you
marry but if its an estate planning (wills trusts etc) it should
probably be where you'll eventually settle down.

YOU ASKED:what is the default law if none of the above is done ( in reference to current wife and stepchildren)

-----> none of the above? What do you mean by none of the above? -- you mention quite a lot before that statement. Default law if you divorce?? ... If you die??... What?
M. Giordano
Legal Advisor

kay
Novice

Post #3 of 8 (5351 views)

Re: [kay] new .....help [In reply to]

sorry I just have soo many questions and issues this step family issue has never ever crossed my mind then slap...

Ok let me take it slowly.

I have Assets he has none?

How should I protect those assets prenuptial or estate planning

he has two children I have none

Future assets? How should I deal with those. (I don't feel that they should be shared since I am the one changing his way of thinking in obtaining assets) In additional I am the one who makes more money.

No provision except for insurance is made for his children ( 2 both minors) mother is a helpless case and choses not to work or do part time work.

Has to move (in the military) possible VA. Future permanent residence possible VA worse case senario back to FL.

DO I do a prenutial since I have assets prior to marriage. Then do estate planning after we get married.

Or should I just wait and do estate planning since I might be selling my house in order to move?

I am having a difficult time understanding that I have to consider future assets as shared with existing children. Is that legal or just a good gesture?

I feel that he and the ex wife (of 3 years) made no preparations or had no future thought other than let's have children because we want a family.

I was always taught to make preparations first then have the children. So I feel that it would be unfair to share something that they did not plan to do in the first place

Legal
GettingRemarried.com Legal Advisor

Post #4 of 8 (5297 views)

Re: [kay] new .....help [In reply to]

Since you feel as you do, your hard work in accumulating a home and
savings should indeed be protected when you marry. To protect these
assets in the event of a divorce would be best accomplished by entering
into a prenup agreement with your future spouse making it clear that
your premarital assets will remain yours (which would generally be the
case even in the absence of a prenup.) It gets a bit more confusing
when premarital assets become commingled with the premarital assets of
your partner (such as when a house is purchased) or when it comes to
marital assets (assets accumulated during the marriage by either party).
The prenup can also make provisions about how these assets will be
handled in the event of a divorce also.

When it comes to how the assets (premarital and marital) will be handled
if one of you should die is accomplished by the process of estate
planning (last will and testament; trusts; etcetera) -- in that regard,
you and your spouse can decide how to distribute assets in whatever way
you choose. The one thing you generally cannot do is disinherit your
spouse totally. So, if you were to die before him the law would mandate
providing something to him. As for all other parties you or your spouse
could exclude providing for them. A local estate attorney should be
consulted in this regard.

One non-legal piece of advice to you, however. Keep in mind that
although you should be commended for helping to "rehabilitate" your
future husband as regards his financial health -- teaching him to save
and accumulate assets -- his minor children are the natural objects of
his bounty (legally and morally) and you should be gracious enough to
insist that his children are treated fairly at the time of his death --
by insisting that his assets earned before and during the marriage (not
yours or your share) be distributed to his children. Believe me, he
will love you even more for your concern in this regard.
M. Giordano
Legal Advisor

kay
Novice

Post #5 of 8 (5138 views)

Re: [kay] new .....help [In reply to]

I did tell him that any assets that he has prior to marriage belongs to his children. however both he and his ex wife made no such provisions. which makes me angry, because they were quiet willing to live in an apartment and spend the money now with no future plans. I wonder how people can make children without thinking about their ability to provide for them long term...

this is why I feel so strongly about setting up something. I think a living will (trust) is what I am leaning towards since I might after we get married and sell the house. We'll have to talk about that.

the_admin
Remarriage Forum Moderator / Moderator

Post #6 of 8 (5135 views)

Re: [kay] new .....help [In reply to]

Yes, please do have some good conversation about this very important matter. We strongly suggest consulting a local attorney for guidance as per the law. You should each have your own attorney and allow these lawyers to guide you through the process.

Is it possible that you feel resentment toward these children either because of the ties they create between your fiance and his ex or becuse of the resentment you feel for the ex directly? Don't take out these feelings on innocent children. They aren't to blame for what you consider to be the lack of financial concern for them on behalf of their parents, are they?

Remember, these are the children of the man you love, right?

Afterall, they will be your stepchildren, a part of your family and, most of all, the children of your husband.
I Do - Take Two Moderator

kay
Novice

Post #7 of 8 (5107 views)

Re: [the_admin] new .....help [In reply to]

I don't want to sound like I don't like the children. Actually I have no feeling at all (good or bad at this time) and I really don't have a reason to dislike them.

This is just my first relationship with children and I'm use to one and one relationship. This relationship has me thinking of issues and laws and right that never came across my mind before.

Sometimes I honestly ask myself why did I have to fall for someone with children. Everything would be sooo much easier.

It's hard to think about them as part of my life.

It is easier for me to think that they have parents and grandparents etc.. of their own.

emily4families
Novice

Post #8 of 8 (4932 views)

Re: [kay] new .....help [In reply to]

You are certainly right about how much easier life is when your FH does not have children. And, that's not your reality. What won't work well for you is to deny your reality and focus on what you wish were different.

You are being very smart to address the legal and financial concerns up front, and before the wedding.

The emotional component is not being addressed, as far as I can see, and this may have far reaching affects in terms of your future happiness, if there are unhappy stepchildren in the mix. If they are adults, you may want to read StepWars by Grace Gabe adn Jean Lipman-Blumen. If they are underage and will be living with you/visiting you at times, then you have a significant reality to deal with.
Emily Bouchard, MSSW
Life Coach, Speaker, & Trainer
Author, "Conquering Conflict: Techniques and Strategies for Resolving Blended Family Conflict"