This column first appeared in the San Antonio Express-News on October 5, 2015.
Dear Mr. Premack: My significant other and I both have previous marriages. We both have adult children from previous marriages. We have been talking of marrying. I do not want her debts to become my debts. If we decide to marry, are there any legal steps to take to protect me and my children from her creditors and her children? – GH
Second marriages later in life can have positive benefits as well as negative consequences. With some exceptions, second marriages become unsuccessful after a few years. This is because some couples ignore the issues: family members clash, and there are arguments over responsibility for debts and medical bills. Generally the marriage does not unfold as was anticipated. Eventually when one spouse dies, there are arguments over the homestead and division of assets. Hence, if you decide to re-marry you should first negotiate a Prenuptial Agreement.
Begin by talking finances with your significant other. She may be feeling the same concerns as you over talk of marriage, so do not hesitate to bring up the subject. Avoid a handshake understanding: a non-binding agreement can fall apart under pressure. If you are serious about marrying, before proposing, propose seeing a lawyer for an outline of the issues that should be covered in a Premarital Agreement.
Divorce need not be the true focus of the Premarital Agreement though it would help you deal with divorce if either of you later decide this marriage was a mistake. Approaching the marriage with the supposition that it will fail is not a good way to begin. Instead, the focus of the agreement should be on creating a framework for a successful marriage.
The Agreement should address several categories of issues, for example: 1) How will you share living expenses, home maintenance, vacations, medical costs and even nursing home expenses when those days arrive? 2) Do you want to have community property or keep all assets as separate property? 3) How will your income and the growth of your investments be treated? 3) Will you share any liability for debts that existed prior to the marriage or create a firewall against liability? 4) Are any of the children disabled or do they have issues like drug problems or incarceration? 5) What happens to the assets when one of you dies, and will the survivor remain in the same home? 6) If there are minor children from prior marriages, will there be a shared support obligation?
Under Texas law, any Prenuptial Agreement must be based on full disclosure of all your financial secrets. You must both know each other’s assets and your debts. Both of you have the right to separate legal counsel. The Agreement must be made voluntarily.
You can protect your children and their eventual inheritance if the Premarital Agreement builds a wall between separate and community property. Meet with your qualified attorney to change your Will (or Living Trust). Do you plan to leave any assets to your new spouse? A Trust inside your Will can be used to benefit your new spouse so long as she is alive, with the remaining assets passing to your adult children.
Decide how your new spouse may be involved in your decision-making should you later become incapacitated. Do you want your new spouse to make medical decisions for you, or will you leave that to your adult children? Do you want your new spouse to handle your finances, or will you leave that to your adult children? Proper estate planning with your Certified Elder Law Attorney provides those answers. When everyone already knows the solutions to the sticky questions, if difficulties arise there will be less friction and more cooperation.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.