So what is the OTHER reason people get prenups?

katiewhompus

Note to self...make will...I don't think either dh or I have one (again, no assets for anyone to fight over)

TurtlesAllTheWayDown

A will would be created after the fact, meaning that as a couple your property has already been legally joined and you may not have any more legal right to what was yours than what he does now.That's a good theory. It depends on the state, though, whether or not property becomes community property or maintains previous ownership when you come into a marriage. PP - I'm sorry about your friend and her husband, but man, it seems REALLY dumb to not make a will when you have a terminal illness.

kkchisholm

Since we are on the topics of wills now, be sure to have a living will as well.

cbvcru67

For what it's worth, and this may be selfish, but my best friend's dad requested that she get a prenup before she was married.   Both she and her husband come from good families, but her dad had left her a significant inheritance in his will and intended for her or her children to get that.  Also something about a trust he had created for future grandchildren.  I didn't want to pry too much, because money can be very personal, but her father's feeling was that he worked his entire life to provide for his family and while he welcomed the husband with open arms, it was meant to be a nest egg to ensure the daughter would always be taken care of in case of a worst case scenario, not the new son-in-law.

cbvcru67

Mery, youre right on.  It all depends on state, to be sure. In some cases, you wouldn't need a prenup to protect from that -  I just think that scenario brings to light another situation where one could be needed, if it applied.  Truthfully, theyre a personal thing.  But as a former girl scout, I'd rather always have a disaster plan and hope things go right than plan for 100% success and never have a contingency.  But thats just me

niffycat

A bit late, but my dh is an attorney so I was just picking his brain on the subject. This is CA specific, but he says that a pre nup will not protect after death, only a will will do that. So, for example, a couple signs a prenup, does not create a will, and the husband dies. The prenup becomes invalid with his death, and does not prevent fighting over property after death. Unless, some pre nups have wills written into them. Then you need to have will protections along with pre nup protections written into the document.

IrishBrideND

I just googled FL prenups, and all the legal sites I read spefically said that a prenup in FL (where ours is) is for the division of assets in case of divorce or death. So it is seen as for BOTH reasons.

Moneypenny424

Niffy said what I remembered of CA law on the subject, but like Irish and others have said, it just varies from state to state whether they are enforced after death.

redheadfsu

I hate wills - I think it is a waste of money. Trusts fix most things that wills do w/o the time & money. There are lots of easy ways to avoid probate that is better than a will.... rant over.

IrishBrideND

question for PP: how do you do things like designate who your kids go to if you don't do a will? I assume that can't be done with a trust, or can it?I'm not questioning your POV, I'm just curious.

redheadfsu

er  to clarify/edit my last post *There are lots of easy ways to avoid probate which are better than having to go through probate* In Fl, Pre-nups & wills work together (Some terms are construed differently in Family & Probate statutes). 

redheadfsu

Each state is different but you can have a trust & of course a trustee that cares for your kids. Trusts can be change very easily. 

IrishBrideND

ahh. I thought trusts were just for money related things. Learn something new everyday!

redheadfsu

Well you need property or money of some sort for the trust, but it can be anything ( stocks, a few dollars, etc) & the Trustee owes a duty to the beneficiaries. There are specially  named trusts for kids but the names is escaping me right now as I'm KUI. 

foolforfood

The will and prenup work in tandem in some cases.  Let's say H and W do have wills.  Let's say H dies and disinherits W, leaving 100% of his estate to his brother.  W can fight it and claim an elective share (dower and curtesy), which is usually 1/3 to 1/2 of H's estate.  The elective share is meant to help widows avoid poverty.In another example, let's say H is not a complete douche and he leaves 1/5 of his estate to W.  Per the elective share rule, W can claim up to 1/2 instead.   So  that's where the prenup becomes handy.  Typically, each spouse typically agrees to waive their right to the elective share in the prenup.  They are essentially risking a future disinheritance, in exchange for something else.Will contests are extremely rare and when wills are litigated, the plaintiffs are rarely successful.  The elective share is one item that can be "read into" the will and the prenup is a document that allows H to avoid that.Also, I've heard of couples who use prenups as an outline for certain marital practices.  For instance, if a Catholic and a Jew marry, they can agree to raise their kids Jewish in their prenup.  I'm really not sure how this would hold up in court, if the prenup were ever contested by the Catholic spouse...but I guess it's good to have each spouse's intent laid out on paper.

redheadfsu

Thought of the name:  custodianship. Now this may not work for everyone. Always talk to a lawyer. But lots of people just get a will b/c they think it is best, but most people don't need a will.

foolforfood

question for PP: how do you do things like designate who your kids go to if you don't do a will? I assume that can't be done with a trust, or can it?I don't know if this varies by state, but in my area, you can designate a guardian of the person via a will.  If you fund a trust for the benefit of your children, the named trustee will be charge of the trust property and distributions to your children.  If you want that same person, or someone else to take care of the child, you need to name that person in your will.

redheadfsu

Foolforfood always gives the most detailed, correct advice.

redheadfsu

A custodianship is a type of guardianship which can be used instead of or coupled with a will

foolforfood

Redhead - that is, until I get disbarred for posting "advice" on the internet

redheadfsu

HAHA... yeah everytime I post anything law related I hear my PR professor in the back of my head yelling at me.

duckie1905

One of the biggest reasons we got a prenup was to protect the other in event that one was not working and the other (with the income) decided to leave. As an example, if I wasn't working because I was at home with kids and DH decided he wanted to leave he wouldn't have the option of just leaving without providing for me until such a time as I could support myself. Aside from that it does outline what would happen in case of illness and/or incapacitation as well as how any assets would be divided upon divorce. Saying you won't get one because you are just encouraging divorce is like saying you won't get car insurance because that will encourage an accident. A prenup is just a form of insurance should things go south.

TurtlesAllTheWayDown

Duckie, in most states you'd be able to sue for alimony for support if you were divorced and not working at the time. For instance, if a Catholic and a Jew marry, they can agree to raise their kids Jewish in their prenup. I'm really not sure how this would hold up in court, if the prenup were ever contested by the Catholic spouse...but I guess it's good to have each spouse's intent laid out on paper. I don't know about the legalities, but traditionally, this is very common with Jewish and Muslim marriages. Islamic marriage contracts outline things like how much the wife will get in case of divorce, in what instances she will file for divorce (traditionally, when her husband takes another wife, abandons her, etc), and, if it's a Sunni-Shi'a marriage, how the children will be raised. So it really wouldn't surprise me if these days, legally binding contracts are drawn up in the US with the same purpose.

duckie1905

mery-it just isn't that simple. That's why its in the prenup. Just an extra level of protection because the prenup already outlines percentage amounts, allocation for housing/food, etc. The court won't decide what each of us would get; its already been decided. We've removed the need for a judge to decide what is fair.

punkyb2b

We have a pre-nup.  It was not an option in my family. You dont marry without one. Irish gave a good example of property being a valid reason.  Monetary inheritance is another.   My grandparents did well financially and are generous.  If at some point in time my DH and I or my siblings and their spouses split or die, there is no way the waterfront home my great gpa built is going to a spouse.   I'm fine with it and can understand the rationale.

foolforfood

Merymac, most contested divorces involve attorneys that charge by the hour.  If everything, including alimony is already stipulated in the prenup, the couple will avoid filings and costly attorney fees.  Also, it's good for peace of mind.  Sometimes the wife can negotiate for an alimony payment schedule that is higher than what is allowed per state guidelines.  Who would you rather have in charge - the court magistrate or you and your spouse?

dojo1

Let's use common sense here.  A prenup is not a will, it was never intended to be a will.  We have built the legal concept of a will into our society.  I just don't buy that a prenup is "more iron clad" than a will, nor do I believe that people get prenups because they are exclusively concerned about what is going to happen to them upon death.   You may get a prenup for a variety of reasons, but death will never be the only one, no matter how you cut it.  Who here is has a prenup that EXCLUSIVELY deals with protection and distribution of property upon death?  I'd love to hear about it.

IrishBrideND

And Do-Jo misses the point.My only comment in another thread was there are other reasons for prenups. There is not just one. kkchisholm here decided to make it into a big deal by calling it out into another thread (where it was shown that in fact in many states there are other reasons). That is all. we got one to plan for divorce and to make sure our assets were protected in case of death from before the moment we married. I simply hate when I hear people throwing around that they are anti prenups because all it is is "planning for divorce." I was simply showing that there is more to it. Get it? Got it? Good.

themidge

"I also think the chance of divorce is a perfectly valid reason to get them, and it's mature and realistic to think about that chance before getting married, given everything that can happen. It's not romantic, but it's necessary to think about it and talk about it." I'm not trying to start fights on here, as most pre-nup threads usually end up. But I must disagree, and let me explain myself. I am a Catholic, and my fiance and I went through the pre-cana and meeting with the priest, and did our FOCCUS (it's a compatability thing for those who don't know). For us, marriage is a holy sacrament between 3 parties: husband, wife, and God. There is no breaking that committment other than death. There is just no room for that possibility. Divorce is not in our vocabulary - they make it very clear to you during the process of getting married in the Catholic church that marriage isn't a fairy tale and isn't perfect. It's hard work and committment - that is why we say our vows. I vow to be there for the good and the bad (sickness, poor, etc). That's the real committment - staying when things aren't easy and trying anything it takes to work things out. Catholics do have half the divorce rate of everyone else, so this approach is obviously working - telling couples what you are going into beforehand and giving you tools and strategies to work out your problems as they happen. I do not believe in going into a marriage with the possibility of divorce in your mind. Don't get married if you are considering this. Only marry someone you are 100% sure you WILL be committed to until you die. This is my opinion, and no one has to share it.

themidge

I want to say something else from a more practical point of view - my fiance and I are both young, fresh out of college for about a year and have been saving like crazy while we started working but don't have much. Each of us has some (not much) assets from our parents in terms of broakerage and moneymarket accounts. However, we made the decision to put each other as beneficiary - to our parents suggestion. We are going into our marriage having made the decision that all accounts and finances are to be joint. Neither of us has kids, by the way. I know that our situation doesn't apply to everyone - some people who have been working longer may own property or some people may have kids to consider. It just so happens that things work out that way for us. I suppose our situation is pretty traditional/old fashioned.