Your Prenup: How Your Family Law Attorney Betrayed You

If you have a prenuptial agreement, chances are that the family law attorney who represented you betrayed you and didn’t even realize it.

 

I often tell clients to get a prenup if they are getting married later in life, and insist my older clients pay for their child’s prenup. And soon thereafter, much to my dismay, I see yet another prenup that unintentionally-yet-completely screws my client if his or her spouse dies unexpectedly.

 

Prenups serve one vital purpose: “Split Money.” There is usually a financial disparity between the parties when the couple marries, so the wealthier spouse naturally wants to protect his or her money from the other spouse’s financial grasp after a short marriage. So the prenup says who gets what if the marriage ends quickly. This makes sense since many marriages fail within 5 years, often leaving the couple with somewhat different financial circumstances than when they entered.

 

But what if a spouse dies unexpectedly, especially early in the marriage? Many family law attorneys automatically enter a second non-necessary aspect into the prenup regarding “Death Money” that denies the surviving spouse any of his or her spouse’s property without a Will (under “Intestacy”), an automatic spousal right to 1/3 of the deceased-spouse’s property (the “Right of Election”), and even minor-yet-important property such as the deceased spouse’s car, personal property, or small sums of cash in a bank account (known as “Exempt Property”). Basically, your matrimonial attorney just ensured you get nothing if you are in a happy marriage but unexpectedly and tragically lose your spouse.

 

Many family law attorneys insist a prenup must deal with both Split Money and post-mortem property. They claim that all that needs to be done is add a statement to the prenup ensuring an unexpected death will not invalidated the remaining spouse’s estate rights, or that they can include a clause stating the couple may draft a Will or Trust to supersede the prenup. And my response is “Be real guys: You rarely include an unexpected death clause in your prenups, and almost never tell your clients to draft a Will or change beneficiary forms after you get paid your retainer.”

 

Let’s face facts: A family law attorney is there to protect you if your spouse chooses to leave you, whereas an estate attorney is there to assist you if the unexpected occurs; one should not try to fill the other person’s role. By the time a loving couple has finished the decidedly-unromantic and taxing discussions regarding a prenup they usually have no strength left to update a Will or beneficiary forms until they have a child. Unexpected death can happen at any time, and now the prenup denies the breathed spouse of all the deceased spouse’s property. Do yourself a favor and educate your family law attorney to not automatically add a Death Money clause in your prenup.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

College Kids in Trouble! Draft Your Child’s Health Care Proxy

Ah, the Ivory Tower, where high school kids aspire to escape to, and parents best hope for 4 years of peace and quiet. But with independence comes responsibility: Travel, driving, concerts, and protests. And drinking. Lots of drinking. And then comes a horrible injury or hospital admittance, followed by a parental realization: You are not allowed access to your adult child’s health care information, and cannot make decisions regarding their health care.

 

In most states, the age of majority is 18, and once he or she moves out of his or her parent’s residence they are considered an adult with all of the privacy rights that inure to adults.

 

The only individual who, by default, has access to your health care information and the ability to make health care decisions for you if you are unable is your spouse. This is a rude awakening for a parent who gets a call stating their child has been admitted into a hospital for over-drinking, or a car crash, or some other horrible incident. Or worse, the child can’t be found and the parent, presuming the worst, begins contacting emergency rooms. Again, the parent has the same right to the same information as a stranger: A hospital may confirm the child has been admitted, but will not share medical status. Then, once the parent finds their injured child, they need to initiate a Guardianship Proceeding to make anything other than the most critical of health care decisions. This expensive legal process is often taking place during one of the most frightening moments in a parent’s life.

 

This scenario can be avoided both legally and practically. Legally, parents should have their child execute a Health Care Proxy naming them as the child’s Health Care Agent before the child goes to school. This allows the parent the ability to both request the child’s health care information, and make urgent health care decisions, even from afar. The Health Care Proxy may even be shrunken to pocket-size, so the child can keep it in his wallet or her purse.

 

For practical purposes, a child should have an informal ICE [“In Case of Emergency”] card in his or her wallet that includes their parent’s names, address and phone numbers. In addition, most smart phones have an “Emergency Contact” function that is easily accessible without needing the phone’s password to access.

 

 

Make sure to prepare a Health Care Proxy for your child before he or she leaves for freshman year, and have them provide discrete means for you to be contacted in case unforeseen actions take place.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

 

Second Wives: Reapers of Sorrow, Destroyers of Family Wealth!

In a world where our assets are constantly under threat from usurious taxes, government largess, financial predators and rapacious offspring, there is still NO worse threat to intergenerational family wealth than a second wife.

 

People get married the first time for any one of a number of reasons: Family pressure, filling a void, the urge to have children, an inexplicable desire to emulate the lives of Al and Peg Bundy and passion.  But these first marriages often end, sometimes with children left in their wake, and are replaced by a second marriage based on love, devotion and emotional security.

 

In these second (or third) marriages, often one spouse tends to be significantly older and more financially secure than his second spouse.  As a result, there is the pressure exerted on him by his wife to provide for her upon his much earlier passing, and the realization that his needs are being provided for as he reaches old age (and yes, he will most likely need his wife quite a bit). Quite often, the remarried parent may not be as close to his children from the former wife and may even acquire new children. As a result, the children begin to distrust their “evil step-mother”, though at some level they are glad they do not need to care for their aging father. Simultaneously, and the children still hold out hope they shall receive some of his estate when he dies.

 

And on that note…

 

…I have had MANY consultations where second wives manipulate, berate and verbally insult their husband if his estate plan does not leave her every last penny. And, much to her credit, she usually wins: Whether out of guilt, shame, or a desire to escape the assault and just be done with the estate planning process, the husband concedes to her demands. It is an amazing spectacle to behold, and particularly difficult when they have not discussed matters beforehand and I am effectively relegated to a Spousal Finances Therapist. I have seen this scenario play itself out almost identically on countless occasions. These sessions are not easy, and I typically reaffirm many, many times with the husband whether he is okay with his final decisions, to which he usually convinces himself this is what he wanted all along…even when he obviously did not want this outcome initially.

 

I suppose there is some level of social commentary that should be interjected here to place a human face to this enduring oddity of successive nuptial relations. First, the second wife really is taking care of an often far-older spouse and genuinely does deserve financial allowances for this work. At another level, women are generally much more in tune with their financial requirements and fears and make sure to protect themselves (preservation with a side-order of greed), whereas men maintain a level of meat-headed bravado that allows them to think they shall always overcome adversity (confidence with a touch of foolhardiness), and are thus fine with the end result. And, let’s face it, the former wife is not oblivious as to what is going on in her ex-husband’s new marriage, may herself be remarried in a similar situation, and will also maintain a focus on providing for her offspring upon her passing.

 

The best way to protect against the second spouse winning an “All In Bet” for dad’s estate plan, is for the children to follow a simple three step process:

  • insist that a prenuptial agreement is essential to maintain his children and grandchildren’s well-being,
  • discuss how trusts naming other family members as beneficiaries and trustees can avoid conflict both during the marriage and when he is gone, and by all means
  • attempt to maintain healthy relationships and communication with dad and his new wife, showing her the respect she deserves for providing the care that might otherwise fall upon you.

 

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.