I Love you…Now Sign Here….Boomers and Prenups

If you are a boomer in California, who has been recently widowed or divorced — and you are thinking about getting married again – you might want to put on the breaks and think about a pre-nuptial agreement.

Some folks think pre-nups are ‘romance killers.’ They can be. However, if you don’t have one you can be exposed to a financial wrecking ball. At the same time, your estate plan could wind up in shambles.

California is a ‘no fault’ community property state. That means a couples’ assets are typically divided in half regardless of circumstances. Couples who wish to have an unequal division of property should enter into a pre-nup to make sure than happens.

Divorced or widowed seniors typically have more assets than younger people do and they also have more financial commitments. There is a lot at stake. Portfolios have shrunk in recent years because of the economy. It is best to sit down with your future new spouse and carefully go over your finances and your expectations. Another concern: are you jeopardizing pension or government benefits with a new marriage?

Another major reason you want to think about a pre-nup is your estate planning concerns. If you re-marry and don’t have a pre-nup and don’t have a will or trust either a major portion of your estate could very well go to your new spouse — and significantly short change your own children from a previous marriage.

The sad fact today is that the national divorce rate is 50% and the divorce rate in California is about 60%. Marrying late in life is no guarantee that relationship will last. Another sad statistic is that a major trend in California is the increasing divorce rate for long term (20 year plus) marriages. The reasons? People are living longer, the kids are grown, there is less stigma attached to divorce, Viagra, etc. It’s the world we live in.

California law permits folks to enter into a pre-nuptial agreement. You can essentially make a contract about all your property prior to getting married. The only thing you cannot contract for with a pre-nup is an agreement on child custody/visitation and child support – issues which are probably not a concern to older folks.

If you are curious, you can look up the Uniform Premarital Agreement Act, which is in the California Family Code starting with Section 1500 and above, and see the requirements for pre-nups.

There are a number of hoops you have to jump through. Some include the fact that each side should be represented by an attorney even if the other spouse only retains an attorney to read and review the agreement. Otherwise, the agreement might be voided. There is also a time limit to sign the agreement before the wedding day to avoid pressure and coercion.

If you don’t think a pre-nup fits your situation, then you might want to consider a co-habitation agreement. More boomers — afraid of the unknown — are opting to live together without getting married but you should have a good understanding of what each person expects if you do decide to live together.

Jim M. from Sherman Oaks, Los Angeles County, CA practices estate planning. He is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).

To learn more about the information provided above or for questions about the above content, contact us at 818-340-4529.