Post-nuptial Agreement - Why to Get One

I ran across Ignoring debt won't make it vanish from the Ventura County Star. I remember one divorce where the division of debts confounded both myself and opposing counsel to settle matter as bloodlessly as possible. No agreement being reached, we left the matter to the judge and I can only call the result a bloodbath. The original article was in a question and answer format. I have some comments interspersed in the original.

"Dear Bruce: I got married five years ago. My husband has two sons, 44 and 42. Both are married and they have a comfortable financial life. All of my husband's stocks are in his sons' names after he passes. We have a house, which my husband owned prior to our marriage and recently was paid off. My question is what will happen to me after he passes? Also he doesn't have a will and he is against it. We live in Colorado. — H.K., via e-mail

So you would think that these sort of people would be talking to a lawyer, right? So did the person at the newspaper.

Dear H.K.: You most surely should have had a prenuptial agreement prior to your getting married. The fact that your husband is against a will is not very clear thinking on his part. In most states, a wife would be entitled to at least one-third of the husband's estate if he dies intestate (without a will). Whether the other assets would pass directly to you or become part of the state is a legal matter.

Of course, they did not, have not, and probably will not. Second marriages with assets and no prenuptial agreement? Who would have thought it? No need to worry about how those assets get used and what debts do not get paid to rankle the newlyweds. Besides they get to save so much in attorney fees!

I think you and your husband should sit down and decide exactly what is appropriate. It may very well be that a postnuptial agreement is the way to handle this. It would appear that your husband, in some ways, is very immature and feels that he is more responsible to his children than to his current wife. These matters should have been resolved before getting married, but since that didn't happen, I would tell him that it is necessary for the two of you to get your lives straightened out legally, and that his first responsibility should be to you, particularly since his sons are financially on their own.

Without a prenuptial, a post-nuptial agreement makes sense. I would say that they are actually merging very close to what might be more proper to call estate planning. (In reality, there ought to be a symbiotic relationship between the need for a prenuptial agreement/post- nuptial agreement and estate planning. The pre/post- nuptial agreement has a part to play if there are probate proceedings instead of a divorce.) Indiana law gives a surviving spouse under these facts only 25% of the real estate's fair market value (less any liens) and 50% of the personal property.

People may not mind the kind of result I just outlined and that is fine because there is no problem then. Problems arise when the results are not what was expected or desired. Undesired and/or unexpected results regarding money and property means litigation. Litigation means much higher costs than would have been the case if the parties had just talked to a lawyer and drew up an agreement that protected their expectations.

A thought for those who are cohabitating together without marriage. Nothing I have written here applies to people who are living together. If the people in the original article were living together, I would say they need a cohabitation agreement and a lot of estate planning. Without a cohabitation agreement and estate planning, the women would get nothing.