• Don’t let love cloud your vision. Your relationship and your future will benefit from clarification. The combination of greater divorce and remarriage rates together with greater longevity has led to an explosion of prenuptial, postnuptial and cohabitation agreements among mature women. The number of marital agreements has quintupled in the last decade. Whether it’s a prenuptial, postnuptial or cohabitation agreement, for women over 60, marital agreements are just as important as in any other stage of life – perhaps even more so.

    What and Whom Should You Protect?

    You may have achieved a career and monetary success that you want to safeguard in an agreement. You may have inherited or expect to inherit assets. You may wish to provide for your children and grandchildren in the event of death or divorce. You and a wealthier partner may want to secure your future, including ownership of a residence. Finally, you may wish to isolate yourself or your partner from one another’s indebtedness.
    Previously, you may not have paid much attention to such issues as retirement benefits, social security, health insurance and long-term care insurance. You may wish to focus on your health care proxy or power of attorney or who will serve as executor, guardian, or conservator in the event of death or disability. Often state laws provide automatic spousal death benefits that must be waived in a marital agreement to effectuate estate planning in favor of your children or grandchildren.

    Using Marital Agreements to Reduce Tension

    Some factors actually may make it easier to enter into a marital agreement at a later age. For example, if you have spent your life accumulating a nest egg, it makes sense that you want to make sure that it will be there for you. If there are children, you may find it easier to present a prenup to your partner if you focus on the need to protect your children — rather than yourself. In addition, a marital agreement may ease the tension between your children and the stepparent-to-be.

    Protection for Unmarried Partners

    Cohabitation has increased 1000% in the last 40 years due in part to older individuals who do not marry because they don’t want to upset their children or reduce their entitlement to governmental benefits. Furthermore, same-sex couples are not permitted to marry in most states. So if you fall in any of these categories, you may need to protect yourself in a cohabitation agreement.

    In many states, no rights accrue in the event of death or breakup unless terms are clearly spelled out in a written agreement. In other states, implied rights may arise as a result of your course of conduct – whether or not you are aware of them. The state’s domestic relations and trusts and estates laws generally are applicable to married folks only, so to create definite rights and obligations, you need to memorialize them in a cohabitation agreement.

    At any age, both parties should obtain a benefit from a marital or cohabitation agreement. In addition, the agreement should promote open dialogue and disclosure about money and other sensitive issues – thus creating the foundation for a happily-ever after relationship and/or marriage.
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    Article by: Arlene Dubin

    Arlene G. Dubin is a partner at Moses & Singer LLP in New York City and co-chair of the Matrimonial and Family Law practice group there. She is the author of “Prenups for Lovers: A Romantic Guide to Prenuptial Agreements.” For more information, see www.prenupsforlovers.com and www.mosessinger.com.

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