LOVE IS IN THE AIR

Last year, I enjoyed the experience of advising a bride-to-be. The look in her eyes as she described her fiancé took me back 40 years to those thrilling days of yesteryear when being with the one you love was as important as breathing. When she would talk about their time together, and of the plans and details of her upcoming wedding, her voice would crackle with excitement and anticipation.

My purpose was to guide her through the negotiations and preparation of a prenuptial agreement. You see, she was an 84-year- old widow with grown children whose interests she wanted to protect. The groom was about the same age, and he also had a family. One of the major purposes of a prenuptial agreement is to create a layer of protection around the assets that one person brings into a marriage so that those assets can be passed on to the next generation.

In this case, their assets were not all that disparate, and they were not trying to protect great fortunes. But they were protecting what fortunes that they had acquired. And although their children were happy for them, and both families seemed to get along, I think that spirit of cooperation and friendliness was due, in large part, to the knowledge that this marriage was for the best of all reasons, true love. By taking monetary gain or risk out of the equation, everyone was able to get down to his or her true feelings.

As this case developed, it was crucial that each party hire an attorney. Doing a prenuptial agreement yourself from a form off the Internet is not wise, and it is really unwise to try to use the same attorney for both sides. Even in the friendliest of cases, as this one was, the parties’ respective interests are as opposite as can be. And even if the attorneys conduct themselves in a professional and friendly fashion, as they did here, a prenuptial agreement has stresses and strains built in.

Among the things that must be discussed, early and often, is money. The issue of full disclosure is paramount in the consideration of the rights and liabilities of the two parties. It is necessary that each party tell the other what they have, so that the other party knows what it is that he or she is being asked to give up because the mere fact that two people get married in Pennsylvania creates rights for both.

For instance, if one spouse dies, the other spouse has a right to make an election against the estate and receive one-third of the deceased spouse’s assets. This is a big deal to the children of the deceased spouse, because that shrinks their inheritance. It can create ill will, too. So by dealing with those issues in the agreement, and by making some changes to the parties’ wills, there can be a peaceful resolution.

But what about divorce? That is a fact of life in this day and age. Statistically, more than 60% of second marriages fail. I have not seen statistics on the marriages among the elderly, but divorce needs to be addressed. In most cases, each of the parties has been living on his or her own and within his or her means before their relationship began. That means they could do it again if the marriage does not last. So we can insert provisions into the agreement that take away support and alimony, as well as equitable distribution of marital assets. This effectively puts the parties back where they were before they met.

After the parties are married for a while, they can start to own things together. For instance, in some cases each party has a house. Sometimes they decide to live in one and sell the other, sometimes the one who sells the house will buy into the ownership of the other, or maybe they just share expenses, and sometimes both houses get sold and they decide to buy a new place together. All of these ideas can become reality, and it is a good idea to involve the attorneys as these developments occur so that the assets can be properly labeled and registered.

One of the major assets that people acquire in their lives is their pension plan. Many elderly workers roll their retirement plans over into a self-directed IRA of some type, which has a beneficiary form. Remember that this beneficiary form trumps a will, meaning that the beneficiary form rules the outcome of where that money goes. So great care should be taken when completing or changing those forms after a marriage in order to preserve the sanctity of the agreement, and to protect the interests of the family. This is another opportunity for the attorney to guide the client.

Prenuptial agreements are not just for the rich and famous. They are for the regular folks who have acquired a few bucks and who want to make sure those dollars find their way to their intended targets. This is where the thoughtful and creative planning one gets with an attorney comes in handy.

Christopher M. Abernethy has been practicing law in Hampton Township since 1976. He focuses on elder law, which includes wills, trusts, powers of attorney, living wills, and probate matters. He also is proficient in all aspects of real estate law and business law. He is a member of the National Association of Elder Law Attorneys, and the AARP Legal Services Network. He can be reached at 412-486-6624 or by email at cabernethy@aaylaw.com.