Q I am getting married in October. My fiancé was married and divorced before and wants a pre-nuptial agreement so he can avoid having to split his assets in half a second time in the event of a divorce. I understand his reasoning. I have my own assets and earn a decent living. I think what he is offering if we divorce is fair.
I am more concerned about what I get if he dies. He is offering me the house if he dies. It is nice to know I will have a place to live, but it seems like I should get more. The house represents only about 10 percent of his assets. His son has a trust fund which will cover all of his expenses through medical school and then some.
What is reasonable in this situation? I don’t want to look greedy.
A Wanting a guarantee that your lifestyle won’t change if your husband dies at a time you are still very much married, especially if you are happily married, is not greedy. There is nothing comfortable about negotiating a pre-nuptial agreement because you are really trying to finalize the end of the marriage before even starting it.
First, if you don’t already have one, you should hire an experienced family lawyer to negotiate the agreement on your behalf. The lawyer will help ensure that the agreement meets the standards for enforceability and is well-drafted so that you can avoid expensive fight down the road over the validity of the agreement.
You will find that attempting to change the terms of what is being offered on the death side is often better received than trying to add to what you get in a divorce. Since your fiancé has a child from his prior marriage, even if that child is well provided for, he is still entitled to inherit on his father’s death. What is fair if your husband dies during the marriage will likely change based on the length of the marriage.
Use his offer as a starting point. If he dies during the first three years of marriage, you get the house. Thereafter suggest a staggered schedule of vesting in his estate. There is no magic to this – you can suggest a percentage increase each year of marriage or a dollar amount. Depending on how old you each are, set an anniversary mark as a sunset clause, meaning at that anniversary you get the house, plus sufficient other assets to make up one-half of his estate.
If, after negotiation, you are uncomfortable with where the agreement lands, think of it is a base line. Estate planning in pre-nuptial agreements can be altered with a new will during times of marital bliss.