Legal Planning for a Second (Third or Fourth) Marriage
Love May be Lovelier- but it is also a Whole Lot More Complicated the Second Time Around
Dennis Quaid, 65 just popped the question to 26 year old Laura Savoie. They would be INSANE not to do a PreNup! The divorce rate for second marriages exceeds 60%. Hammering out the legal and financial issues ahead of time can prevent much costly legal wrangling later.
Beyond establishing who gets what in the event of death or divorce, prenuptial agreements are increasingly being used to address financial issues within the marriage. These so-called ‘lifestyle clauses’ can be used to establish spending priorities and parameters.
I would also strongly recommend that the couple agree to a non-disclosure provision. This clause sets up a financial penalty for sharing nude, sexually explicit, or otherwise embarrassing photos and images. Such a clause would likely have prevented the current circulation of Jeremy Renner’s private parts across the internet.
Even if the relationship beats the grim divorce odds, the couple needs to deal with how the estate is distributed at death. Robin Williams’ lack of clarity in this regard, set the stage for a nasty “Will War” between his adult children and surviving (3rd) spouse.
A Roof Over One’s Head In a second marriage situation, the primary residence is commonly titled in one party’s name. Thought must be given to the survivor’s living arrangements upon the death of the owner. The most common (but imperfect) remedy is to grant the non-owner survivor a life estate in the home. Then upon the subsequent death of the survivor, the home will revert to the adult children or other beneficiaries of the first to die. This approach makes intuitive sense but can sometimes have unintended consequences.
A life estate for the survivor quite literally means that he or she is the de facto owner until death. The family would, therefore, be unable to sell the home or otherwise use it regardless of whether the survivor gets remarried, moves away or winds up in a nursing home for years. To add insult to injury, the nursing home would be entitled to require that the property be rented out and the income used toward the survivor’s care.
A better solution would be to grant the surviving spouse a ‘Right of Occupancy’ in the house. With this, we can specify events in addition to death which will have the legal effect of terminating the survivor’s right to reside in the property. For example, the right of occupancy might terminate upon the earlier of the survivor’s death, remarriage, voluntary departure, or absence from the property for a continuous period in excess of four months. This specificity will prevent the adult children from being stuck with an asset that they can’t sell or otherwise use. It is also critically important that the Will or Trust creating the right of occupancy clearly spell out who is responsible for what expenses.