Prenups do more than protect divorcing couples

Dear Money Lady,

I am 67, and getting married again — hopefully, third time’s the charm. Should I consider a prenup?

Jeannies

Congratulations Jeannies — and yes.

There’s a lot of talk about “gray divorce” these days, but there really should be more about “gray marriages.” They seem to be on the rise over the last few years — even with COVID.

Everybody deserves to be happy, but you also want to be protected, so good for you to be considering a marriage contract.

Marriage contracts are typically entered into prior to the marriage, hence the term ‘pre’nuptial. However, they can also be signed or amended at any time during the marriage.

I would always recommend getting a marriage contract because they are extremely beneficial for comprehensive estate planning, which includes death succession, not just a possible divorce.

To protect clients, I am much more interested in what is to happen in the event of a spouse’s death, and of course, it is necessary to ensure the marriage contract and the will are “in sync.” You see, marriage contracts can, and often do, override wills.

Let’s look at an example. You cannot gift more to your surviving spouse via your will than in the marriage contract unless the contract states that you can do so. Typically, the will states that the testator is a party to a marriage contract already in existence, citing the marriage contract by its date.

Today, many people have had multiple marriages, have complicated financial lives, properties, children, grandchildren and perhaps even dependents that need constant care. It is not a lack of love or future commitment to your new partner, but rather your conscious need to set out the manner in which your finances and property will be shared or divided in the event of divorce or death; based on your wishes and intentions, not on provincial statutory law.

Marriage contracts are limited in their scope and to be valid and enforceable, the spouses must have made full and complete disclosure of all their assets and the values, including trust interest and all debts and liabilities.

It is also prudent to obtain a certificate of independent legal advice so that the marriage contract is less vulnerable to challenge and to being set aside by the court.

Of course, it goes without saying that you must have this done with your lawyer, and for the benefit of all parties, it really should be signed well in advance of the date of the wedding.