Prenups aren’t registered like marriage certificates, meaning it’s hard to gauge how popular the prenup is becoming. However, matrimonial attorneys say a growing number of senior citizens are doing the prenup thing. While such people aren’t as rich as Donald Trump, they still have more money than younger people, and many have children from previous marriages to protect.
“At one time, the only people that did [prenups] fit the stereotype of the rich old man marrying the fox. That is no longer true at all,” says Mike McCurley, president of the American Academy of Matrimonial Lawyers. “More older couples are getting divorced and remarrying, and more of them are demanding security and predictability in the law.”
With so much at stake, it’s hardly surprising that prenup usage is on the rise. According to the Federal Reserve Board’s latest Survey of Consumer Finances, conducted in 1995, “households headed by people between 55 and 64 had a median net worth of $110,800”– the highest of any age group used for the study.
So who will inherit this wealth? When there’s no prenup, many states provide the surviving spouse with as much as one-half of the deceased partner’s estate. In terms of divorce, as much as 50% of a person’s wealth/assets can go to the spouse. Senior citizens don’t have many years left to earn back what they lost in a divorce, either!
The issues marriage bring up are so many most senior citizens choose not to remarry and opt to live together instead. Marriage is also a concern for their children. “A woman’s kids aren’t going to like the situation if their father paid for the house and it’s going to someone who met her when she was 65 years old,” says Lilly Singer, coordinator of the bereavement program for Westchester Jewish Community Services in Hartsdale, N.Y.
Prenup terms vary a lot depending on the couple. They “can be as narrow as dealing with the stock of a closely held company and as broad as everything they bring to the marriage,” says Fred George, an estate-planning lawyer with the Pittsburgh-based law firm of Eckert Seamans. Some even decide to keep their assets completely separate. Others determine who will fund long-term care, and subsequently set up trusts.
Prenups also don’t have to be the idea of the man, as it’s always a good idea for women to protect themselves.
Lawyers warn that despite who initiates the prenup, the agreements can be challenged and overturned. For example, a partner can argue that he or she signed under great stress. Courts have also ruled that an agreement presented the week or day before the wedding wasn’t entered into voluntarily.
Lawyers advise couples to use separate attorneys when drafting prenup to avoid these issues. They also say couples should catalog their assets and be completely honest about said assets, especially on “hard to value” things, such as shares in a family business. How much the prenup will cost depends greatly on how complicated the agreement is.
However, the rewards of sitting down to create the agreement often go beyond legal security. It’s a way to “get in touch” with your beliefs and values, and those of your partner!