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Law Offices of Ronald W. Rutz
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January 9, 2006: Remarriage

Q: This is my third marriage (I lost my previous two wives) and her second marriage. Any recommendations?

A: For a short, thumbnail summary, three things need to be done: redo Wills; keep assets separate, even those assets that are intended to pass to the other; and do Marital Agreements. But be forewarned that even if all three are present, there is no guarantee that the understanding the two of you have will be followed at the second death.

The most important document to establish for second marriages is the Marital Agreement. The moment that marriage occurs, a significant web of rights and privileges instantly is created in the areas of divorce and death that a Will will not override. So even if the Will states one thing, the law controls.

To wipe the legal blackboard clean and eliminate these legal provisions, a Marital Agreement needs to be signed, thus permitting each person to select how to benefit the other. The Marital Agreement does not have to eliminate all rights and privileges. It would be up to each person to decide how to provide for the other.

Do not attempt to write your own Marital Agreement. Although I have seen some self-drafted Wills that would work, I have never reviewed a Marital Agreement that would survive even a tepid attack.

The Marital Agreement should specifically cite which statutory and common law rights are waived, what specific assets and income sources (such as pensions and Social Security) along with values are being affected, and two lawyers need to sign the Agreement indicating that each person had independent counsel and thus could knowingly execute the document.

All of this is the result of several Colorado Supreme Court decisions. Otherwise the Marital Agreement will not last as long as a snowball dropped during the hottest part of the day on a Kona, Hawaii beach, if that long.

Each person needs to do at least a Codicil to his or her Will, specifically referring to the Marital Agreement. If provisions are to be made for the new spouse, the Will should be redone, often with the bequests to the new spouse held in a Trust so that at the second death the remaining trust assets will revert back to the desired ultimate beneficiaries of the first to die.

I would suggest that any Trust set up should be Medicaid and Social Service bulletin proof, so the survivor can receive any needed benefits without having the Trust destroyed by the government being able to take the assets.

The problem with these Trust is who should act as trustee. If it is someone sympathetic to the survivor, or his or her beneficiaries, the trust assets can be "looted" even with distribution restrictions in place. If the trustee is sympathetic to the deceasedŐs beneficiaries, the survivor can experience very unpleasant and misery trust distributions.

Finally even if the Marital Agreement attempts to indicate how to treat commonly owned assets, I have witnessed too often the Court maintaining the status quo (ownership) over the Marital document, especially for long lasting remarriages. In other words if items are placed in joint tenancy, then those assets will go to the survivor regardless of the terms in the Marital Agreement.

Thus it is important to do the best that you can. So the effort to at least get the necessary documents in place is important. Otherwise, the legacy left will be frustration and acrimony, not help for the new spouse while protecting your ultimate beneficiaries.

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