Older Floridians should consider premarital agreements before wedding

Seniors entering marriages later in life may have unique legal concerns.

Marrying later in life can be a blessing, but from a legal standpoint, before tying the knot in older age, consider a premarital agreement. Prenuptial agreements are not just for the young and wealthy; these contracts may be helpful at any age and income level.

A prenup is an agreement entered into by an engaged couple before marriage that becomes effective upon marriage. The purpose is twofold: to designate how certain personal matters will be handled (for example, all living expenses will be purchased from the husband's personal bank account) and to change the way matters of property ownership and money will be resolved according to the choices of the couple, rather than how the law would dictate.

Provisions often deal with distribution or division of assets in case of divorce, separation or death. Each elderly couple's situation will be unique, but typically factors influencing whether to use a prenup and what to include are their ages, previous marriages, children and other family, relative wealth, unique assets and more.

Typical reasons such matters may be of particular concern to older Americans include:

  • A senior with children or grandchildren from a previous relationship may want his or her money or belongings at death to go to them instead of the new spouse, who may already be self-supporting.
  • An older spouse may want his or her assets to provide for a friend or relative who needs special care or who is in need.
  • The spouse may own a family business that he or she wants to leave in the hands and control of the family of origin.
  • The engaged couple may want to provide creatively for the care of one another in case of disability or the need for long-term care.
  • They may want to designate who will be responsible for medical insurance and other health expenses during the marriage.
  • Special provisions may be included concerning plans for dealing with potential mental incompetency.
  • A decision could be made about how retirement benefits will be owned; for example, one spouse may agree to waive his or her spousal interest in a pension or 401(k).
  • A wealthier spouse may want to be sure to provide for the less wealthy spouse should the better-off spouse become ill or pass away.
  • They may want to decide how legal matters related to the marital home and other real estate will be handled during the marriage or at divorce.
  • Issues of tax liability and filing may be important to consider.
  • The couple may want to consider how to deal with spousal support or alimony in case of divorce; for example, should it be preset, eliminated or waived?
  • And others

Of course, with so many retirees moving to Florida, the state's laws governing premarital agreements take on particular importance. Florida's premarital agreement statute is complex and each person part of an engaged couple should seek his or her own legal advice in order to understand the options and pros and cons of each.

Legal counsel can describe what Florida law says about allowable topics and enforceability requirements. For example, to be valid, the execution must have been voluntary; without duress, fraud, coercion or overreaching; and not unconscionable and with proper disclosure of assets and debts (or waiver of disclosure).

Finally, the couple's respective lawyers can assist with negotiation, drafting, review and execution of the agreement.

With offices in several Florida cities, the family lawyers of The Law Offices of Elkins & Freedman represent clients across Central and South Florida with prenuptial agreements and other family matters.

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