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PRE-NUPTIAL AGREEMENTS FOR SECOND MARRIAGES IN CALIFORNIA

by Faith Jansen, J.D., Divorce Mediation and Family Law Consultation Attorney, Walnut Creek, CA

If you are getting married for the second time, you may need a pre-nuptial agreement not only to determine the disposition of property and liabilities in the event of a divorce but also to prevent a Will contest between your surviving adult children and your surviving spouse if you die during the marriage. You may also use a pre-nuptial agreement to create a road map for how money will be budgeted and debts allocated during your new marriage.

Second marriage pre-marital financial planning may include a plan to keep pre-marital property physically apart, or segregated, from the other party's pre-marital separate property. It may include a plan that each spouse keep his or her own earnings separate or a plan that the earnings of both spouses during marriage will remain community property as California law provides in the absence of a pre-nuptial agreement. Even if earnings remain community property during marriage, you may want the beneficiary of all or part of your retirement benefits to be someone other than your new spouse. A pre-nuptial agreement will be necessary to obligate your fiancé or fiancée to sign a consent form during the marriage which allows you to designate a non-spouse as the beneficiary on your retirement election forms.

A pre-nuptial agreement should work hand in glove with your trust, Will, and estate plan. Your pre-nuptial agreement will cover the rights and responsibilities you and your spouse will have toward each other while both of you are alive, either during an ongoing marriage or in the event of divorce. Your trust, Will, and estate plan covers the disposition of your property if you die during the marriage. Your pre-nuptial agreement and your estate planning instruments need to be consistent with and complementary to each other.

Talking about money need not put a damper on the romance. While many people view talking about money as taboo or bad manners, if you are about to enter into a second marriage you probably have learned from past experience that advance communication about money management philosophies and expectations will increase the chances that the new marriage will work. Before you start talking about money with your fiancé or fiancée, you should get a confidential consultation with a lawyer to learn what would be your rights and responsibilities in a marriage with or, alternatively, without a pre-nuptial agreement.

Using separate lawyers to negotiate a prenuptial agreement is essential in California, where the Family Code provides that certain provisions in a pre-nuptial agreement may be deemed void if the party against whom enforcement is sought was not represented by a lawyer at the time of negotiating and signing it. This requirement is not met if the parties use the same lawyer or if one of them has a lawyer and the other one does not. Similarly, each party should use a separate estate planning lawyer in order to avoid a conflict of interest.

You may not need a pre-nuptial agreement to preserve the separate property character of your pre-marital assets during a second marriage; But, as already mentioned, a pre-nuptial agreement may still be advisable in order to obtain the written promise of your fiancé or fiancée not to contest your trust and Will, or to obtain the written promise of your fiancé or fiancée obligating him or her to sign consent forms during the marriage allowing you to designate a non-spouse as beneficiary of your retirement accounts. Whether or not you need a pre-nuptial agreement will depend upon your unique situation. Get a consultation with a family law lawyer and also with an estate planning lawyer as soon as you find yourself contemplating a second marriage.

Same-sex marriage planning for pre-nuptial agreements involves the identical issues as opposite-sex marriage planning in the areas of property rights and spousal support obligations for couples marrying and living in California. In the landmark case of United States v. Windsor (2013) 133 S.Ct. 2675, 186 L.Ed. 808, 118 FEP Cases 1417, 57 EBC 1577, the Supreme Court of the United States ruled that the widow or widower of a same sex marriage is entitled to claim the Internal Revenue Code's surviving spouse exemption which allows her or him to inherit tax-free from the deceased spouse. Same-sex marriage rights are a dynamic area of the law in which progress sometimes has been made incrementally and at other times has been made in quantum leaps as with the Windsor case. If you are contemplating a same-sex marriage, either with or without a pre-nuptial agreement, get a legal consultation to learn about the law as it is at the time you enter the marriage and then get periodic legal consultations during your marriage to keep informed of ongoing developments in the law.

Links:

www.aarp.org/money/estate-planning/info-02-2012/renuptial-agreement.html. (An article entitled, “Do You Need a Prenup? Find out how to discuss prenuptial agreements before your propose”, by Jane Bryant Quinn, from AARP Bulletin, February 16, 2012.)

www.aarp.org/workk/retirement-planning/info06-2011/marriage-and-money.html. (An article entitled, “Marriage and Money: Talk Before Taking the Leap. Good advice, especially if you’re older”, by Jane Bryant Quinn, from AARP Bulletin, June 1, 2011.)

(Copyright 2013 by Faith Jansen. Faith Jansen negotiates pre-nuptial agreements, does divorce mediation, juvenile guardianships and adoptions in Contra Costa County, California, and has an office in Walnut Creek and website at: www.fjansenlaw.com.)