Marital Planning & Agreements

Happiness in the second, third, and fourth relationships is possible when estate planning can mirror the couples’ true concerns for each other and their families.

A re-marriage is not uncommon these days. What is common is that both partners have children and family by previous relationships. When couples make a decision to marry and commit to one another, they clearly intend to support each other until death do they part. No one plans that a marriage will only last five, 10 or 20 years. Yet, little consideration is given to what problems may be created if the marriage is prematurely ended with the death of a partner. The traditional Will plan would have their children unintentionally disinherited.

When partners have children to consider in their planning, it is my experience that both partners approach the relationship with a common lifetime commitment and acknowledge a deep commitment and love for their respective children. The problem is: How to accomplish both providing for the surviving spouse and providing for children by previous relationships. Well that may sound difficult; with proper planning, it is actually very easy.

The focus in our practice is on counseling. The planning begins with education. Many of the important principles related to planning are conveyed by way of stories in the education programs. When clients hear stories about how others provided for the surviving spouse and the children by previous relationships, it provides opportunity for clients to hear, in a nonthreatening way, about a subject that is considered off-limits. However, once the topic has been introduced, this can be brought up again in a later planning meeting with the attorney who can then openly discuss how each partner feels about their commitments to themselves and their families. When both openly discuss the importance of providing for their respective loved ones, a mutual respect and commitment to those desires is developed. A plan that works for the parties can be agreed upon by the parties to be included in a way that is satisfactory to both.

While the same attorney can do estate planning for both parties, the same attorney cannot represent both parties to a marital agreement as the law does not allow that. Once final details are worked out, an agreement can be signed. But before signing, a discussion then follows with respect to how best to complete a formal written agreement with the assistance of independent counsel for the other partner. Our office assists with finding someone acceptable to the other partner. Generally there is only a very modest charge for the review because most of the work has already been completed.

The signed marital agreement provides a base line for each partner’s expectations. Of course, as time passes, the partners may want to modify such an agreement. The agreement created is flexible enough for such modifications to reflect the partner’s changing views. The greatest benefit of such an agreement is that it avoids the unintentional disinheritance of a child or family member which almost always happens when the partners use a traditional “I Love You” Will, with no consideration for how to plan for the other children and family.