elder law
Tying the knot ... Again? Some things to consider in avoiding wedding blues
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By Alexandra R. English any of my clients have lost a spouse, be it through divorce or death.
Sometimes unexpectedly, they find themselves falling in love again. This can be complicated, particularly when there are adult children involved and each party has assets and debts of his or her own. Should you remarry? Hopefully, this article will point out some issues that you may want to consider before tying the knot again. Protecting Adult Children. You may want to remarry, but are concerned about whether your assets will remain intact for you and your adult children. The best way to protect your assets is with a prenuptial agreement. A prenuptial agreement is a contract that you and your fiancé sign prior to the marriage. It outlines the terms and conditions of how assets are to be divided if the marriage dissolves or if one spouse dies. It is best for both parties to be represented by their own counsel when drafting, negotiating, and signing this document. This may take some of the romance out of your wedding preparations, but it is simply a smart way of proceeding. It is very common for a late-in life prenuptial agreement to divide property on the basis of “what’s his is his” and “what’s hers is hers” in the event of both divorce and death, with each spouse waiving any right of inheritance from the other in the event of death. However, you will also want to consult with an estate planning attorney to refine the division of your assets upon your death or your spouse’s death. If you have a substantial amount of assets you may consider having an attorney draft a trust, which would distribute your assets according to your wishes and avoid probate court. You will also want to check the beneficiaries you have listed on life insurance policies, bank accounts, vehicles, etc. Some adult children are concerned about a subsequent marriage of a parent. This is a personal family issue. If your children know that you are taking steps to protect yourself and them by having these documents drafted, they may be more willing to accept a new spouse into your life. Social Security Benefits. Social Security benefits are an important consideration, causing some individuals to decide to simply live together rather than to remarry. Much of this depends on your age. If you decide to remarry before the age of 60, you cannot receive benefits as a surviving spouse from a previous marriage if you are married to someone new. However, if you wait to remarry
until the age of 60, you will still qualify for benefits based on a former deceased spouse’s Social Security record. After a short one year waiting period, you will qualify for benefits based on your new spouse’s work record, assuming that new spouse is retired. Social Security does not allow you to “double dip.” You would only be able to collect benefits that total the higher amount of any benefits you may be entitled to receive. In other words, you cannot receive a full benefit amount for each your previous spouse and your current spouse. In order to qualify for retirement benefits based on an ex-spouse’s work record, you must have been married to that individual for at least 10 years. Accordingly, it is possible for more than one current or ex-spouse to draw off of the same individual’s work record. I suggest researching the Social Security website (www.ssa. gov) or possibly even going to the Social Security Administration to talk to a representative about how your benefits might be affected if you remarry. There could be various scenarios involved depending on your age, your retirement status, your marital status and the type of benefits involved (retirement benefits versus survivor benefits), and all of these factors must be considered. Debts. Kansas law upholds the principle of the “doctrine of necessaries.” The doctrine of necessaries requires that a spouse be responsible for the other spouse’s debts related to food, shelter, and medical expenses. If you decide to marry your new significant other, you would be held to this same principle. You could be held responsible for any debts incurred by the other spouse for these purposes. If you remain unmarried, you would not be held responsible under the doctrine of necessaries. Continued to next page
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• July 2015