If you are in the process of getting remarried, a prenuptial agreement may be the last thing on your mind. It should be at the forefront of it, however, as it can be beneficial for you, your spouse, and, if applicable, your respective families in various ways.
A prenuptial agreement — often referred to as a prenup — is an agreement people enter into before marriage that defines various rights in their marriage, as it addresses how property is classified during marriage and in the event of divorce, legal separation, and death. Though a prenup may feel unnecessary or like a bad omen, it can actually be a helpful tool. It can even serve to strengthen your marriage by taking potential sources of worry off the table by allowing the parties to create a custom financial plan for their shared future that will address how finances will be handled going forward.
If you are remarrying, you may have unique circumstances that would make a prenup even more helpful. For instance, perhaps you have children from a previous marriage or relationship that you want to account for or obligations to a previous spouse. By entering into a prenup, each person’s obligations and rights are clearly established and outlined, which can save you stress in the future should you face having to make difficult decisions.
Still in doubt about how a prenup can help if you are planning to remarry? Below are a few areas where a prenuptial agreement can be a critical tool.
Assets and property acquired before and during your marriage
Protecting assets and property is one of the biggest reasons to enter into a prenup. Especially if you are remarrying, you may have assets or property from a previous marriage that you want to have a plan for.
For instance, maybe you have a family home from a previous marriage which is your separate property, but you and your new spouse are going to live in it. You may have specific wishes about what happens to this property in the event that your marriage ends; by creating a prenup, you can work with your soon to be spouse to agree what is the best plan for how to designate the character of the house (i.e. separate, community, or a mix of both), instead of risking it becoming subject to Washington state’s property division laws.
Similarly, you may have plans for any property or assets acquired in your new marriage. Perhaps you learned a lesson from your first marriage, or you simply have a preference for how certain assets are handled. A prenup allows you to set out your wishes with your spouse clearly.
Debts and spousal support
You may also have debts or spousal obligations like spousal support from a previous marriage. Just like with property, spousal obligations, too, can also be complicated by remarriage. Where does the money for these payments, for example, come from? Current income into the marriage? Prior assets? A prenup can help you both to decide how these matters should be handled.
You may also want to separate your debt from your spouse’s debt, for instance. Or, perhaps you have a specific plan in mind for how to handle or allocate your collective debt. Regardless, you can make the process of managing debt much easier by establishing a prenup before you marry.
Children, inheritance, and support
Remarriage often includes children — sometimes on both sides of the marriage. If you or your spouse already have children, a prenup can be a critical tool for protecting them in the event that your marriage ends or for providing for your new blended family in a very specific way.
For instance, maybe you want a home from a previous marriage to go to your child in the event of your death. Maybe you have specific plans in mind for a college fund for them. Establishing a prenup to establish the character of specific assets, in conjunction with a will, will ensure that your children receive the assets you wish for them to receive.
If your spouse also has children, they, too, may have particular wishes. Establishing a prenup protects all of the children involved and lets their parents set clear expectations and rules for what they will get in the event you divorce.
An important caveat: In Washington State you cannot include terms dictating child custody or child support in a prenuptial agreement. These issues would be negotiated as a part of your divorce agreement or, if you are unable to reach an agreement, decided by a judge.
Death and incapacitating events
Prenups are intended to outline what happens to your property during your lifetime, especially if your marriage ends, but sometimes a marriage ends upon death. It is important to note that although a prenup can address certain issues surrounding death or incapacitation, it should not serve as a substitute for an estate plan.
The reason is this: A prenup is an agreement between two parties, whereas a will involves unilateral decision-making on the part of the person whose will it is. In short, a prenuptial agreement addresses what happens with property when you are living and a will addresses what happens with property when you are not living.
Why then, you may be wondering, would a prenuptial agreement apply to death? The answer is that if you have specific wishes for how assets are handled in the event of your death or incapacitation, such as whether your choose to waive certain rights like an interest in an asset, a prenup can allow you to specify these wishes. It is also important to know that the laws of intestacy (dying without a will).
If you die without a will, all of your community property will be given to your surviving spouse and, if you have children, half your separate property will be given to your surviving spouse and the other half to your children. A prenuptial agreement can specify whether the laws of intestacy apply so that you have more assurance that 100% of your separate property will go to your children instead.
For another illustration of the difference between a prenuptial agreement and a will, consider what would happen if one spouse decided to will their children from a previous marriage the home they owned with their current spouse. They could only do so if, in the prenup, the surviving spouse agreed to waive their interest in the house in the event their spouse should predecease them.
A prenup is ultimately about creating clarity around certain obligations and assets. Having a prenup comes down to protecting yourself by establishing clear guidelines.
If you have been divorced before, you probably know how stressful, how time-consuming, and (in some cases) how expensive the divorce process can be. Especially if the relationship is highly contentious, the process can be even worse.
Establishing a prenup while you are on the same “team” — and not in the middle of a stressful event, divorce or otherwise — can be the limiting factor on all of these issues. And the foundation for you to make a solid fresh start sooner.
Find an experienced Seattle family law attorney who can advise you about your remarriage and prenuptial agreement.
At Elise Buie Family Law, we understand how important it is to you to protect yourself, your family, and your assets when remarrying and how a prenup can offer you the security you crave. Our Seattle team has vast experience negotiating and drafting prenuptial agreements for remarriage and can help with yours.
If you would like to discuss your situation with one of our team members and how a prenup can benefit you, we are here to listen. Call our Seattle office today.