Paying north of $80,000 for prostitutes has cost one AARP-eligible New Yorker a whole lot more. Per the terms of their leaked postnuptial agreement, Eliot Spitzer, the shamed but shameless former New York governor, will hand his stoic ex-wife title to their Fifth Avenue home plus $7.5 million in cash and will pay her a $240,000 allowance every year until she dies or remarries plus an annual $100,000 charity stipend.
With their none-too-surprising divorce final last February, the Spitzers joined the ranks of the gray divorce revolution documented by sociologists Susan Brown and I-Fen Lin. Here in the US, one in four of 2010’s divorcees were over age 50. That’s a huge jump from 20 years earlier, when fewer than 1 in 10 persons who divorced had ever puffed at 50th birthday candles.
I’ve taken a new last name recently, for the reason women usually do, so I’m not here to announce the death of marriage. Although remarriage rates have declined for both the divorced and the widowed, a quarter of divorced women age 45 or older still remarry, as do a third of men in that age group.
I’d like to report that these second, third or fifteenth marriages all turn out swell, but that might leave you thinking you’d stumbled onto a report from The Onion. The latest figures show around 67% of second marriages and 73% of third marriages ending in divorce.
Enter the Prenuptial Agreement
It’s not the only tool available for protecting your money in marriage, but it can be a mighty one.
Divorce rates fluctuate; however, despite all those medical advances, the mortality rate for humans is constant: 100%… still. While many of us refuse to do the most basic estate planning—41% of Americans age 55-64 do not have a will—that mortality rate is never, ever going to budge.
If you are over age 50, there’s a strong chance you have children. There’s also a strong chance those children don’t want to share their inheritance with your charming but broke tennis instructor turned third husband. Actually, even if you marry your financial peer, they still won’t want to share with your new mate.
If you live in the US, you’re allowed to say “to hell with the kids.” Testamentary freedom is the root principle of American succession law. If you pass away single, each of the 50 states will respect a will leaving everything to the cable guy, if that’s what you want. It’s not so elsewhere.
In France or Norway—actually in most European countries—parents are not free to overlook their children. If parents in these countries need a scapegoat, I suggest John Locke, who wrote:
“God Planted in Men a strong desire… of propagating their Kind, and continuing themselves in their Posterity, and this gives Children a Title, to share in the Property of their Parents, and a Right to Inherit their Possessions. Men are not Proprietors of what they have merely for themselves, their Children have a Title to part of it…”
Now, despite the decidedly American freedom to cut out the kids, you cannot completely disinherit your current spouse, regardless of which number you’re on.
Here are the general rules. In community property states (California, Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), each spouse generally has the power to bequeath 100% of their separate property and half of the community property.
All other states, with the exception of Georgia, use the elective share to limit one spouse’s ability to cut the other out at death. (A surviving spouse in the Peach State can petition the probate court for a “year’s support” but their statutory rights end there.) The amount and type of property subject to the elective share varies a great deal from state to state. The short story is that a surviving spouse generally is entitled to at least one-third of the deceased’s property if the deceased spouse leaves living children, and one-half if he or she does not.
Opting Out of the Rules
Your spouse can waive his or her right to community property and to the elective share. It’s perfectly legal, if it’s done right. For our purposes, I’m going to skip the question of how to convince your beloved that opting out is a good idea and jump to making sure the agreement sticks.
A quick hint: don’t write it on a napkin, as Steven Spielberg did. The California courts threw that napkin in the trash and handed Spielberg’s ex-wife a $100 million divorce settlement.
The requirements for a valid pre- or postnuptial agreement vary from state to state. Hire a local attorney who specializes in marital and estate planning to draft yours—not your friend who got you out of a speeding ticket that one time. Beyond that, here are a few rules of thumb:
- Put it in writing. Pillow-talk promises are easily forgotten, and they mean nothing to most courts.
- Each spouse should be represented by independent legal counsel. There’s no such thing as “our lawyer” here.
- Disclose all of your assets. Every last crumb.
- Complete the agreement long before the wedding. Last-minute signings are an opportunity for a court to throw out an agreement for being signed under duress.
- Avoid lopsided arrangements that leave the less wealthy spouse with nothing.
Chances are you love your children and want to leave them something. Hopefully you also love your new spouse and would want to leave him or her a piece of the pie, too, although how big a piece likely depends on the age at which you remarry, real or perceived financial obligations to other family members, and the size of your new spouse’s own piggy bank. For the very wealthy, there are more sophisticated and often expensive tools for getting the result you want. For everyone else, a prenuptial agreement is a practical, relatively inexpensive solution.
Limiting the Unpleasantness
If you want to limit your spouse’s take if the marriage is successful, you really want to limit the take if it’s not. The que sera sentiment you might have felt when writing checks to an ex-spouse who was using the money to care for your children won’t carry over for someone you married later in life and with whom you don’t share children.
Happy second marriages do happen. But here’s where I have to repeat those nasty statistics: in the US, 67% of second marriages and 73% of third marriages end in divorce.
The mention of a prenuptial agreement can make even the most pragmatic person squirm. It almost sounds like a dirty word. It shouldn’t, and here’s why. Every marriage begins with a prenuptial agreement—an agreement the state has written for you via statutes, case law, and the like. Why not tailor it to fit you and your betrothed?
A quick word on postnuptial agreements. As you likely guessed, they essentially operate the same way but are executed after the wedding. The Spitzer agreement happened long after Silda Wall cozied up to the editor of the Harvard Law Review and later married him. It was actually signed on the eve of their divorce, likely to ease an untidy process.
Financially, Silda did just fine. I wouldn’t begrudge her a penny.
There’s no need to worry about paying a hefty divorce settlement if you don’t have much. Of course, we’d all prefer having accounts worth fighting over.
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