Second marriages: pre-nuptial and post-nuptial agreements

By Sally Wagley, Maine elder law and estate attorney

Some clients who marry later in life do not think, before the wedding, about the usefulness of a prenuptial agreement. In the flush of romance, these clients may not have their minds on practical matters, such as ensuring that their assets will remain separate should they divorce and ensuring that children from previous marriages will inherit.

After the wedding, when things calm down, these clients may turn their attention to these sobering issues. They may, at that point, wish they had executed a prenuptial agreement. Is it too late for these clients to execute an agreement of this kind?

No, it is not too late for these clients. Post-nuptial agreements under which each member of the couple agrees to forego certain spousal rights in the event of divorce or upon death. In this situation, each one will need to see advice from his/her own lawyer, as a single lawyer would face a conflict of interest in representing them both. Also, each one has to make full disclosure to the other of all financial assets that each has, so that there are no secrets between them in this regard.

Second marriages: the “elective share,” your spouse’s right to part of your estate when you die.

The law in Maine is such that, absent an agreement to the contrary, a married person cannot disinherit his or her surviving spouse. The law gives the surviving spouse the right to go to court to demand that he or she receive at least one-third of the deceased’s “augmented estate.” The determination of the amount that the surviving spouse can receive takes into account not only the assets in the deceased spouse’s name but also some of the surviving spouse’s assets.

We have many clients who marry later in life, sometimes for the second time. Each spouse has accumulated assets separately and may have children from a previous marriage. One or both spouses may wish to favor his or her own children in the will, choosing not to leave anything to the surviving spouse or perhaps to leave only a modest amount. For those clients who die without being aware or without addressing the “elective share” issue, the deceased’s children may be in for an unpleasant surprise, should the surviving spouse choose to seek more from the estate than what was left to him or her in the deceased’s will.

Clients who are either planning to marry or who are already married, who wish to agree that neither will file for the elective share against the other’s estate can put this in writing in a prenuptial or postnuptial agreement.