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  • Michael J. Greenberg

Why You Should Consider a Prenup or Postnup for Your Second Marriage

A second marriage is such a beautiful opportunity. After the pain of a divorce or the loss of a beloved spouse, you are so fortunate to meet someone. As you are planning your future together, don’t forget to plan for your financial security.

Update your estate plan and documents

Estate planning documents include wills, trusts, health care proxies, and power of attorney documents. Make sure you think about your goals and update these appropriately. You do not want your ex or deceased spouse named as a power of attorney, for example. Consider all the possibilities.  You do not need to name your new spouse in all the documents either. 

For example, if you prefer, you can have an adult child, sibling, or close friend be listed as your power of attorney or health care proxy.  This might be more relevant when there are monetary disparities or aging concerns (a spouse with memory issues should not have the power of attorney as they can be taken advantage of).

Consider a prenuptial or postnuptial agreement

Especially if there are older children or no chance of future children, a prenup or postnup can provide financial security and possibly calm the fears of family members.

A prenup or postnup can be important to protect assets that you bring into the marriage and the assets for any children. A prenup is signed before marriage. Note that it should be signed as far in advance as possible to ensure that it was not signed under duress (courts don’t look fondly at a groom handing a bride a prenup to sign while she is already wearing her wedding dress).  A postnup is signed after marriage. This typically requires “consideration,” the giving up of something of financial value to entice the spouse to sign.

Protect children from prior relationships  

If you have children from a prior relationship, you want to make sure that you take care of them after you are gone.  In most states, including New York, if you die without a will, half your estate goes to your spouse and the other half to your children. If you predecease your second spouse without proper estate planning, your money could go to their children or family. This seems rather unfair, especially for a late-in-life second marriage.  However, there are ways to avoid this or diminish this chance:

1) Life insurance trusts. You can purchase a sizable life insurance policy through a trust and have the children as the beneficiaries of the trust. This guarantees that they will be getting a financial payment upon your death. There is an added benefit that the payout is not included in your taxable estate.  

2) A trust created during your lifetime. Before getting married, you can put aside money that you won’t need for your own expenses and retirement. This has the added protection of not being included in any possible litigation or divorce.

Protect and care for your new spouse 

Even if you choose to create a trust and leave your estate to your children, you want to make sure that your spouse lives comfortably the rest of his or her life.  To accomplish this, you could create a marital trust for the benefit of your spouse to make sure they can continue to live in the marital home for the duration of their life and utilize any income from the trust for their personal care and spending.

Typically, a spouse is entitled to a right of election, meaning they are entitled to one-third of their spouse’s estate at death.  However, some people choose to utilize a prenup and have their new spouse waive this right in a prenup in exchange for a marital trust.

We dream of a happy family and that children (if involved) will accept our new partner, but sometimes there is acrimony. By creating a plan that protects the original and new family members, fewer opportunities for discord exist.

Reach out to Michael Greenberg for a consultation to discuss what steps to take for your specific new marriage to make it as successful and protected as possible.


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