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Can You Protect Yourself From Your Future Spouse's Debt?

Posted By Carrie Warner || 15-Jul-2016

Question: I am in the process of getting married for the fourth time to a man who has been married twice before. We are both 65, and each of us has children by prior marriages, all of whom are grown. Although he has had some financial reversals in the past, including a bankruptcy and tax liens, he appears to be doing fine now. He is still working to pay off his debts, and just received his first credit card.

Since we met a year ago, he has been helping me financially by paying part of my mortgage and car payments, which he says he will continue to do. I am very conservative, have a pension, a 401k, and income from my investments. I have no debt other than my home and automobile.

Now that we have decided to marry, I am getting nervous and thought it would be a good idea to get a premarital agreement to protect me; however, he balked and said that we don't need one. Is there any way, short of an agreement, for me to protect myself as I really love this man and want to get married?

Answer: Although premarital agreements may be binding between a husband and wife, contrary to what most folks think, third parties -- like the IRS -- are not bound.

And there are other potential problems, including: (1) Without a waiver of estate rights, your spouse will be entitled to receive a spouse’s share of your estate, no matter what your will provides. The percentage will vary from state to state. (2) If you file joint income tax returns with your spouse during your marriage, you are, in effect, signing a note to be responsible for past due taxes, interest, and penalties that you may not even know about. (3) Under the "necessaries doctrine," you may be responsible for your spouse's medical and other bills. (4) If your spouse enters a nursing home and spends all of his assets, before he will be able to qualify for Medicaid, you will be required to spend down your assets to the maximum allowed in your state – despite your premarital agreement. (5) By your husband making your mortgage payments, he is probably gaining an equitable interest in your property -- and if you live in a community property state, different rules may apply.

In short, since your husband-to-be has a history of financial problems, tax liens, and a bankruptcy, we think you are getting yourself into a risky situation, with or without a premarital agreement. We strongly suggest that you thoroughly think this through. Having been married three times before, one would think that you would be ultra-cautious; however, if you are convinced you want to take the risk a fourth time, contact an experienced lawyer in your state to help you make some decisions

Folks who decide to remarry multiple times – especially seniors -- must take a realistic look at both their and their fiancé’s present and past economic situations. If the relationship is “true love” but financial problems are present, an alternative to marriage is cohabitation that will free the financially stable individual from unknown obligations. But even if there is a cohabitation, we suggest that there be a written agreement between the participants to assure that everyone is on the same page.

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