James H. Beauchamp
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PRE-NUPTIAL AGREEMENTS

My clients sometimes ask sticky questions. After the death of a spouse, one of those questions is, “What should I do if I decide to remarry?” When this question is asked, I can reasonably assume that the prospect of a new spouse is around the corner.


In answering the question, we first need to consider the estate plan that was in effect before the marriage. If the couple in question had established an irrevocable “Q-tip” trust, then the children’s right to inherit will be (at least in theory) protected. If, however, the trust permits the surviving spouse to use all of the trust assets, then the estate plan previously made for the children may be in jeopardy, should mom or dad remarry.


I thought it might be beneficial to review a few principles of law relating to remarriage, as well as mention some practical matters that have been of concern to my clients. The surviving spouse will normally want his or her children to receive some sort of inheritance, and will also want to have good relations with the children. Stated differently, all parents know their children are, to some extent, covetous. Simply put, the children want to receive some sort of inheritance when both mom and dad are deceased. Though life has no guarantees, the easiest way to give the children peace of mind is to enter into a pre-nuptial (or pre-marital or ante-nuptial) agreement. With this objective in mind, let me list some matters of concern in formulating a pre-nuptial agreement.


My clients are usually surprised when they learn that I can only represent one of the parties. Though this conflict of interest rule is obvious to lawyers, apparently it is not to my clients. Once they learn that I cannot prepare an agreement in which I represent both parties, the question is then asked, what if we do nothing at all (i.e., what if we don’t enter into a pre-nuptial agreement)?


The answer to the follow-up question is two-pronged: part of the answer must deal with divorce, and part with the laws of inheritance. Let me first cover the divorce rules. In Oklahoma, as in many states, property that’s brought into the marriage retains its separate character, so long as it’s not “mixed”, that is, transferred into the joint names, thereby becoming part of the marital property or the marital estate. Husbands and wives begin to accumulate marital property when the marriage is consummated, and generally speaking, such property belongs to both of the parties – both husband and wife are regarded as owning half of the marital estate, for purposes of divorce.


Now let me turn to the issue of death. On the death of a spouse, the spouse’s interest in the marital property goes to the other spouse – which is to say, the marital property will all belong to the survivor. I have enclosed a copy of the Oklahoma statute of descent and distribution, which explains in length what the rules are in Oklahoma1, should a spouse die without leaving a will (if the deceased spouse has a will in which the surviving spouse is disinherited, the surviving spouse’s right to elect against the will is impaired to some extent, because of 84 O.S. §44 – this section permits the surviving spouse to elect against the will, but only to the extent of one-half of the property acquired by the joint industry of the husband and wife, during coverture). Please note that the statutes specifically exempt property dealt with by pre-nuptial agreements, and that provision of the statutes ought to give some comfort to the parties and to their children.


To avoid any confrontation with their children or their betrothed, some of my clients have simply left their property in their respective trusts, so that when one spouse dies, the surviving spouse will have rights only to the marital property. Separate property, which was brought into the marriage (perhaps kept in trust) will retain its separate character.


There are a couple of other bumps in the road, however. The first involves the residence of the parties. In second marriages, both of the parties will usually own their own homes. In some instances, the parties will build or purchase a new home, and sell the old homes. In most cases, however, one of the spouses will rent his or her home, and move into the home of the other. The question then becomes, what rights does the surviving spouse have to the home he or she is living in? The answer to this question is not always clear, because the probate laws grant the surviving spouse a right to homestead property (58 O.S. §311), which means, quite frankly, that the surviving spouse will have the right to live in the home until he or she dies, regardless of how title to the home is held. I recommend that some decision be made what is to be done with the “home” , so that the surviving spouse will have the assurance that he or she may continue to live in the home until the survivor dies. However, in some instances, the parties agree at the outset that the surviving spouse will have no rights to the homestead. Since the parties can waive their homestead rights when a mortgage is signed on real estate, logic would suggest they can waive homestead rights in a pre-nuptial agreement. However, at least one Oklahoma Court has held that a surviving spouse’s rights under the statute of descent and distribution cannot be defeated by placing property in a revocable living trust (Thomas vs. Bank of Oklahoma, 684 P2d 553, 1984) – though title to the real estate was held in trust, the Court determined that the surviving spouse (who was not a trust beneficiary as to the real estate) was entitled to live in the real estate until death. This case undermines whether or not waivers are valid, at least in this setting, and underscores the importance of deciding, at the outset, what is to be done with the residence, when the first spouse dies.


The other issue that needs to be addressed is support: how will the surviving spouse survive without the combined income of husband and wife? The survivor will be entitled to step up to the higher social security payment of the deceased spouse, but the loss of part of the social security benefit might jeopardize the standard of living of the survivor. To supplement the income, life insurance might be procured, and to supplement income, and it may be a cost-effective method of giving solace to both husband and wife, and the children, who will want to receive an inheritance when mom or dad dies.


Another issue normally dealt with in a pre-nuptial agreement is alimony (usually the parties are too old to deal with child support). If the marriage does not succeed, then the parties ought to be able to retrieve what they had brought into the marriage, without an added alimony support obligation. They can agree in a pre-nuptial agreement that they will not make any alimony claims against the other if there is a divorce. However, to make such an agreement enforceable, it is important that the parties list and disclose to the other party exactly what they own, as well as what debts they have.


After the parties are married, there are two sets of rules dealing with debts: first, neither is liable for the debts incurred by the other (43 O.S. §208). Spendthrift husbands do not bind their wives, nor do spendthrift wives bind their husbands. But the second rule changes the first rule: husbands and wives are responsible for "necessaries" of the other spouse (43 O.S. §209.1). I suppose necessaries (which is not defined) would include food, shelter, and clothing; but do necessaries extend to hospital bills, nursing home bills, and the like? No one knows the answers to these questions (except the judges), and perhaps asking such questions goes beyond the scope of this article.


Let me state this from a different perspective. There are generally four battlegrounds in marriage: money, sex, in-laws, and children (perhaps number five should be added, which is, redecorating a home or building a new home). The issue of money and spending habits ought to be considered before the parties marry, because whatever habits they’ve formed will undoubtedly be carried on after the remarriage.


Another thorny issue in marriages relates to retirement funds – after the marriage, if one of the parties wants to change an investment in an IRA, the other spouse will have to agree to that change in writing. I have been adding a clause in the pre-marital agreements which requires both spouses to agree to changes in those types of investments, and if one of the spouses later refuses to consent to such a change, then the pre-nuptial agreement contains a power of attorney, in which the non-consenting spouse appoints the other spouse as his or her agent, for purposes of making changes in the IRAs.


After the marriage has been consummated, the parties can revoke the pre-nuptial agreement. Years ago, one of the lawyers in our firm had prepared a pre-nuptial agreement for his client, who happened to be 20 years older than the lady he was marrying. A month after they were married, they decided to revoke the pre-nuptial agreement. They are entitled to do this, but such actions will cause problems with the children of the prior marriages.


One final consideration relates to the enforceability of pre-nuptial agreements. Many of my clients, rightly or wrongly, don’t consider any agreement to be enforceable, due to bad experiences they might have had in court. This attitude is certainly not universal, but as life goes on, we’ve all learned that things don’t always work out as we planned. Our court system was originally perceived as one that would be a place of last resort. After all, reasonable people ought to be able to work out their own disputes. The court system was designed to resolve only those disputes which reasonable people could not agree upon. In today’s society, it seems as if we have nothing but unreasonable litigants, and the courts are bursting at the seams, so to speak, with lawsuits brought over issues that really ought not to be litigated.


In the arena of pre-nuptial agreements, hopefully the terms and conditions will be honored by the surviving spouse and the children. If the parties resolve some of the issues mentioned in this article before the marriage is consummated, then the pre-nuptial agreements will probably be honored by the surviving spouse and the children.


In conclusion, I think it is prudent to use pre-nuptial agreements, as opposed to trying to plan around property ownership issues which might arise in the case of death or divorce. It is not only the right thing to do, but one which will carry out the previous estate plan. And hopefully, the pre-nuptial agreement will reduce normal tensions that come from the children of the previous marriage.


Above article: ©1999 James H. Beauchamp


Post Script 2011


Before I married some 46 years ago, Dr. Rippy, my family doctor in Stillwater, gave me this piece of sage advice, which was based on the countless women patients he saw every week. “Jimmy”, he said, “so many women show up at my clinic with some minor ailment they have, that really doesn’t require medical treatment. But they show up, and I listen to their complaints for 10 or 15 minutes. Do you know what they want?”


I was only a 22 year old “kid” when he was telling me this, and I didn’t have a clue as to what he was driving at. He went on to explain. “They want someone to listen to them. So what I am telling you is this: when you get home, and I don’t care how tired you are, or how disinterested you are in what Fran is about to say, sit down and listen to her. You don’t even have to answer her, if she has a problem. Just listen.”


Based on this, I normally tell my male clients to do the same. When you get home at the end of the day, sit down, shut up and listen.


Women receive different advice, which is, learn to read body language. When you see your husband wants to go into his cave, whatever that may be, let him. Do not try to talk to him when he is wanting to withdraw.


And regardless of sex, I tell the client that he or she should have the same value system as the other person. I tell them to set up a budget, and hopefully, open a joint banking account, to which each will contribute.


I remind the client that he or she will be marrying the other person’s family and financial statement. If the person has lots of debts, that will create tension in the new marriage, even though the new husband or wife isn’t liable for the debts. Family ties are very strong, meaning, if you loathe your new father in law, mother in law, or want to fix what’s wrong with the new step children, then rethink what you are about to do.  Your spouse will protect his or her family ties.


This is my premarital advice which has nothing to do with law or prenuptial agreements.


[1]Oklahoma Statute of Descent and Distribution


§84-213.

  1. Prior to July 1, 1985, if any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the following manner:

    First. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third (1/3) to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation: Provided, that if the decedent shall have been married more than once, the spouse at the time of death shall inherit of the property not acquired during coverture with such spouse only an equal part with each of the living children of decedent, and the lawful issue of any deceased child by right of representation. If the decedent leave no surviving husband or wife, but leaves issue, the whole estate goes to such issue, and if such issue consists of more than one child living or one child living, and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation.

    Second. If the decedent leave no issue, the estate goes one-half (1/2) to the surviving husband or wife, and the remaining one-half (1/2) to the decedent's father or mother, or, if he leave both father and mother, to them in equal shares; but if there be no father or mother, then said remaining one-half (1/2) goes, in equal shares, to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares: Provided, that in all cases where the property is acquired `by the joint industry of husband and wife during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said property remain, one-half (1/2) of such property shall go to the heirs of the husband and one-half (1/2) to the heirs of the wife, according to the right of representation.

    Third. If there be no issue, nor husband nor wife, nor father, nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if the deceased, being a minor, leave no issue, the estate must go to the parents equally, if living together, if not living together, to the parent having had the care of said deceased minor.

    Fourth. If the decedent leave no issue nor husband, nor wife, nor father and no brother or sister is living at the time of his death, the estate goes to his mother to the exclusion of the issue, if any, of deceased brothers or sisters.

    Fifth. If the decedent leave a surviving husband or wife, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviving husband or wife.
    Sixth. If the decedent leave no issue, nor husband, nor wife, and no father or mother, or brother, or sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote.

    Seventh. If the decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation.

    Eighth. If, at the death of such child who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise, they take according to the right of representation.

    Ninth. If the decedent leave no husband, wife, or kindred, the estate escheats to the state for the support of common schools.

  2. Beginning July 1, 1985, if any person having title to any estate not otherwise limited by any antenuptial marriage contract dies without disposing of the estate by will, such estate descends and shall be distributed in the following manner:

    1. If the decedent leaves a surviving spouse, the share of the estate passing to said spouse is:

    a. if there is no surviving issue, parent, brother or sister, the entire estate, or

    b. if there is no surviving issue but the decedent is survived by a parent or parents, brother or sister:

    (1) all the property acquired by the joint industry of the husband and wife during coverture, and

    (2) an undivided one-third (1/3) interest in the remaining estate,
    or

    c. if there are surviving issue, all of whom are also issue of the surviving spouse: an undivided one-half (1/2) interest in all the property of the estate whether acquired by the joint industry of the husband and wife during coverture or otherwise, or
    d. if there are surviving issue, one or more of whom are not also issue of the surviving spouse:

    (1) an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture, and

    (2) an undivided equal part in the property of the decedent not acquired by the joint industry of the husband and wife during coverture with each of the living children of the decedent and the lawful issue of any deceased child by right of representation;

    2. The share of the estate not passing to the surviving spouse or if there is no surviving spouse, the estate is to be distributed as follows:

    a. in undivided equal shares to the surviving children of the decedent and issue of any deceased child of the decedent by right of representation, or

    b. if there is no surviving issue, to the surviving parent or parents of the decedent in undivided equal shares, or

    c. if there is no surviving issue nor parent, in undivided equal shares to the issue of parents by right of representation, or

    d. if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent, half of the estate passes equally to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of any paternal grandparent if both paternal grandparents are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation and the other half passes to the maternal relatives in the same manner; but if the decedent is survived by one or more grandparents or issue of grandparents on only one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth in this subsection, or

    e. if there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree;

    3. If the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of a grandparent, nor kindred, then the estate shall escheat to the state for the support of the common schools; and

    4. For the purpose of this section, the phrase "by right of representation" means the estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner. The word "issue" means lineal descendants.

 

©2011 James H. Beauchamp

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