Dear Rick:
I have an estate planning issue I hope you can help me with. About 10 years ago I got married for the second time. At that time I decided that it would make sense to do a pre-nuptial agreement, which we did. As part of that pre-nuptial agreement we both agreed to waive any rights we would have to each other’s estate. My beneficiaries are my two adult children. Things have changed in the 10 years; my kids don’t need my money and I want to leave a substantial portion of my estate to my wife. My questions to you are is there anything that prevents me from doing this and is there anything special that I should put in my will?
Dave

Dear Dave:
Absolutely, there is no problem with you amending your will and leaving a substantial portion of your estate to your wife. The pre-nuptial agreement basically sets out the minimum that both parties must do, but it does not prevent you from doing more. The only thing I would recommend when amending your will is to put in some language to the effect that you recognize there is a pre-nuptial agreement and that you’re not required to leave anything to your wife, but you have chosen to do so anyways. If you put language such as this in your will, you should have no problem.

If you go back 25 or so years, discussions about a pre-nuptial agreement were always regarding a second marriage and there were substantial assets involved. In today’s world, that is no longer the case. In fact, in many situations I recommend pre-nuptial agreements for first marriages. In situations where one person may have ownership in a business or be involved in a family business, or where there are substantial assets involved, a pre-nuptial agreement can be extremely valuable in case the marriage doesn’t work. In the cases of second marriages where people may have children from the first marriage, a pre-nuptial agreement can also be valuable in protecting the children of the first marriage.

I recognize that a lot of people are opposed to pre-nuptial agreements. Their argument is that you get married for love and a pre-nuptial agreement complicates the situation. I agree that people should get married because they love each other and they should take their vows seriously; however, we all know the reality of the situation is that not all marriages work. A pre-nuptial agreement sets forth the terms of an agreement if the marriage does not work and makes any breakup easier on both parties.

I also recognize it is difficult, particularly in a first marriage, to discuss the issues surrounding a pre-nuptial agreement. Emotions run high and parties aren’t always in agreement with regard to a pre-nuptial agreement. That being said, I always remind couples that there are going to be some speed bumps along the way and that discussing a pre-nuptial agreement is nothing more than a speed bump.

Do I recommend pre-nuptial agreements? My answer in more and more cases is yes. People are getting married later in life and as a result they have a variety of financial and family responsibilities that lend themselves to a pre-nuptial agreement. Never think that someone who asks for a pre-nuptial agreement is not committed to the marriage or does not love the other person. Rather, you should think that in most cases, the person who asks for the pre-nuptial agreement is mature enough to know that things don’t always work as planned and that a pre-nuptial agreement can go a long way in preventing a bad situation from becoming even worse.

Good luck!

If you would like Rick to respond to your questions, please email Rick at rick@bloomassetmanagement.com.