By Attorney James A. Spella, Schloemer Law Firm, S.C.
Wisconsin law follows a marital property classification system. Accordingly, you may need to consult with an attorney for a prenuptial marital property agreement before getting married, especially for second marriages or if one of the parties has children before the marriage.
Second and subsequent marriages are common occurrences. Divorced individuals, widows, widowers, and never married individual, may be cautious to enter into marriage, and rightly so due to increased concerns regarding certain matters.
Individuals have unique personal, family, and financial situations. Likewise, so does the intended partner. Only a thorough discussion of objectives and applicable local law, will provide guidance on how to accomplish objectives. What follows are a list of questions to ask yourself and discuss with your partner. You should also consult with an experienced attorney to ensure that the discussions are reduced to an enforceable prenuptial agreement.
Here are a list of questions to consider, discuss with your partner, and discuss with your attorney:
- Are you a widow/widower or a divorced person? If divorced, does the Divorce Judgment from your previous marriage require any ongoing obligations to your former spouse, such as life insurance beneficiary designation, maintenance, etc.?
- Do you have children from prior to the marriage? How do you want your estate distributed at the time of your death?
- Do you have a current Will or Living Trust? Are the distribution instructions under your Will or Trust consistent with your current intentions? It is not unusual for parties in a second marriage to want to provide some distribution to the new spouse. If there are such intentions, would you transfer ownership of assets, such as the house, or a right to use assets for a period of time, such as a right to live in the residence?
- In Wisconsin, even if there is a ‘opt out’ Prenuptial Agreement (parties retain assets as if single), the married spouse continues to have a support obligation to a spouse who is in a care facility. Should you consider requiring each party to maintain their own long term care insurance?
- Who should act as your Personal Representative, Trustee, and Agent under a Durable Power of Attorney? Who should be the successor to the named individual?
- Who should be the designated Health Care Agent? and the successor?
- Under Federal Law, spouses have a right to be named the beneficiary of retirement accounts. Will a spousal waiver be required?
- If the marriage is terminated by death, did you want to provide some form of financial benefits to your spouse? Would such a benefit be dependent on the length of marriage?
- If the marriage is terminated by divorce, did you want to provide some form of financial benefits to your spouse? Would such a benefit be dependent on the length of marriage? Would such a benefit bolster enforceability if your financial situation is significantly greater than your spouse?
- Is your intended spouse represented by counsel? If not, the Prenuptial Agreement can be challenged based on the fact that the unrepresented party did not understand legal impact of the Agreement.
- Have both parties made a full financial disclosure to each other? Again, if not, the Prenuptial Agreement can be challenged since a party may assert their decisions were not based on a full understanding of the financial situation.
- Will you provide adequate time between the discussion and signing of the Prenuptial Agreement and the marriage? If not, a party may assert that the Agreement was signed under duress? Example: “If you don’t sign this tonight, I will not show up tomorrow for the ceremony.” This can lead to invalidation of the Agreement.
- Where will you live? Your house, their house, or a new house? What are your arrangements as to the house upon termination of marriage by death or divorce? If there is a mortgage note signed by both parties, what is the understanding of that obligation at termination of marriage by death or divorce?
- Is one spouse giving up their career or retiring, so as to facilitate marriage? If so, will the Prenuptial Agreement reflect this lost income at termination of marriage by death or divorce?
- Are one or both parties insurable for life insurance? Many times life insurance death benefit proceeds for the surviving spouse can address an intended on going support objective.
The next step is to schedule an appointment with an attorney to discuss whether you need a prenuptial agreement and what terms should be included in the agreement.
To ensure enforceability, you should start the process as early as possible. We recommend the prenuptial agreement be signed at least one month before the wedding, so you should start the process even earlier than that.
If you are interested in starting the conversation, call our office at 262-334-3471 to schedule an appointment with one of our attorneys.
Originally published: February 7, 2022.
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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. -Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected].