This is the sixth in a series of seven articles to help you understand what you do know, don’t know and should know about estate planning.
You don’t have to be a Kardashian to need a prenuptial agreement. Here’s why. Many of us enter into marriages after years of successful earning and asset accumulation. Maybe you built a business. You may expect to inherit money. Maybe you’re really attached to the beach house you owned before you two met. Even though you may have been together for years, disparities in wealth, professional status, citizenship and age can all create issues. A pre-nup is a means for both of you to acknowledge what you bring into the marriage – and how what was once yours alone will be treated if you divorce or if one of you dies.
In the old days, unless you owned a home together, it was fairly easy to dissolve a relationship that didn’t work out. One of you could just move out. Marriage changes everything. Now in order to end your relationship, it will take a divorce with all its risks and rules. (This is also a potential issue for couples who have registered as D.C. Domestic Partners.)
Judges in divorce courts have great power to do what they think is “equitable” in terminating a marriage. They can divide up a couple’s assets in ways that they believe is fair. A court can also force the wealthier spouse to pay alimony to the less well-off spouse. I realize that the concept of paying alimony is foreign to most gay and lesbian people unless they have been married previously. But it is a real issue as some our marriages come to an inevitable end.
Getting married also changes the estate planning equation. If you are not married, there are absolutely no requirements about how much you might leave to your partner. Once you are married, there are significant restrictions that prevent you from disinheriting your spouse. In general, your spouse will be entitled to at least one-third of your assets when you die, whether or not that’s your actual plan.
Prenuptial agreements (and postnuptial agreements) are designed to provide predictability when couples split up or when one spouse dies. These agreements are designed to make your own rules to handle the three primary issues that I’ve just described: equitable distribution of assets, the award of alimony and marital share claims by a surviving spouse. Here is how they can work for you:
1. You, as a couple, get to decide how your assets would be divided if you ever separated. Many agreements start with the basic concept that whatever you brought into the relationship you should get to keep and the assets you both acquired jointly should be divided on a predetermined basis.
2. You – not the court – define the amount of alimony to be paid in the event of any separation, or whether alimony will be limited or not paid at all.
3. If you have reasons to leave money to someone other than your spouse when you die, your spouse will agree to that treatment in advance and not try to get more later.
In the Washington area, many people who don’t think of themselves as rich have acquired substantial assets through years of federal government service, such as large TSP accounts. They rely on the existence of those accounts for their eventual retirement. Losing half of that balance in a divorce might be devastating. The old saying that “an ounce of prevention is worth a pound of cure” is the guiding principle of premarital planning. It’s not unromantic. It’s just sensible.
(This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.)
Larry Jacobs has helped hundreds of same-sex couples and LGBT singles in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 41 years. Learn more about Larry and his practice at PartnerPlanning.com.