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Social security benefits may be negatively impacted in a second marriage

It Sounded Like a Good Idea, Or Reasons Not to Remarry-at Least Not Without a Prenup

It Sounded Like a Good Idea, But…. Reasons why you May not Want to Remarry (or at least get a Prenuptial Agreement to Protect you)

Remember the first time around, the beautiful wedding, the dreams of the future and all blissful until….

THE DIVORCE (play the theme from “Jaws” in your head at this point)

Some people, as several of my clients have told me- just like to be married.  One gentleman in particular, although I did not do his first divorce, came to me for two subsequent divorces. Thankfully prior to the fourth marriage, I prepared a prenuptial agreement for him.  He just likes being married!

Only half kidding, I have told clients who have hired our firm for representation in a second or third divorce, that   I would willingly “vet” their next prospective spouse, free of charge.  You see, I am not only a marital and family divorce lawyer, I am one who likes to see if we can avoid future divorces.

So here you have Cindy Vova’s short list of reasons not to remarry:

  • If you are receiving alimony, chances are that alimony is going to end upon remarriage
  • Then, if you give up permanent periodic alimony, and you remarry, and that marriage only lasts a few years, you’re likely not going to get permanent periodic alimony in round 2.
  • If you’re paying alimony to a former spouse, you still have to pay the former spouse upon remarriage, and, really, do you want to have the potential to be paying two former spouses?

What if you stay married on a second go-round under the old premise…till death do you part? Sounds good and then no worries.   Or are there still reasons to be concerned?  Of course there are.  If you fail to do proper estate planning, your new spouse could end up inheriting assets you thought your children would receive.  For example

If you fail to create a will or trust and you die

  • With children from your spouse, and the spouse has no other descendants then your spouse inherits EVERYTHING
  • With children from your spouse and the spouse has children from another relationship, then your spouse gets ½ of your intestate property and your descendants inherit the other half of your intestate property (which means ½ of your estate could ultimately go to your spouse’s other children…instead of your children)

When your spouse dies

  • With a spouse and children from you and someone other than your spouse, then your spouse gets ½ of the property and your decedents get the other 1/2 of the property

And then there’s that tricky thing called the “elective or spousal share” under Florida law.  Here, you’ve created a will and planned so your children from a prior relationship are sure to get everything, you think.  So, the essential terms of the will say, (with more legalese) “It was nice being with you, but I’m leaving everything to my kids.”    Well, your spouse could say (after you’re already gone and your spouse finds out he/she was “left out”), “not so fast, buddy; I’ll take my spousal share under Florida law.

  • Essentially, the elective share of an estate under Florida Law is the amount a surviving spouse is entitled to receive, regardless of what a will says, that is equal to 30 percent of the probate and non-probate assets.  The actual calculation of the elective share is a little complex, but suffice to say this election can be avoided if you plan in advance.
  • Then there’s Social Security. Notwithstanding that I heard just today it is predicted that social security will be bust  by 2035…or possibly within the next seven years…If you were previously married to someone for more than 10 years, and  the social security you are entitled to receive is less than ½ of that of your former spouse, you are entitled to receive the larger amount.  Additionally, upon a former spouse’s death, you will receive that person’s full social security benefit if it is less than what you would receive based on your earnings.  But you forfeit the right to that income if you remarry before age 60.
  • And of course, Medicare Premiums. Your Medicare premiums depend on what you earn.  You can earn up to $87,000 and your premium- the lowest- would be $144.60 for Part B.[1] However, if your spouse’s  adjusted gross income,  combined with yours ( or if you’re retired this can be based on your  spouse’s income alone), exceeds $174, 000 the premium for you jumps to $202.40 per month.  Levels keep increasing so that if the combined income is over $750,000 the monthly premium is $491.60.  Of course if your combined or your spouse’s income is this high, maybe paying 4 times the minimum amount won’t bother you, but it is worth noting.
  • Medicaid: And on the other end of the spectrum, if you receive Medicaid benefits as a single person, once you are joined into holy matrimony , your benefits will be based on household income, including your spouse’s income,  so you may become ineligible to continue receiving Medicaid.

So a prenuptial agreement can help protect you (regardless of whether you are the “moneyed” spouse or not.  For example

Elective Share: This  can be waived in a prenuptial agreement.

Alimony:  Although a prenuptial agreement cannot protect you against the termination of your prior alimony from an ex- spouse, it can be drafted to take into account what you are giving up and provide negotiated protection for eliminating the prior alimony.

So a prenuptial agreement, combined with a sound estate plan, can ensure that when you’re gone, what you intended to do with your estate actually happens.

In any case, it is a good idea to speak with a family law attorney and estate planning attorney before you enter into a second marriage, particularly you are sacrificing a financial benefit you received in your divorce or if you wish to ensure that your assets go where you want them to go once you’re gone.

[1]

The Social Security Building…missing a few letters after a hurricane

Based on yearly income in 2018- Medicare lags behind a few years until you file another return in a subsequent year, and then if your income goes up your premiums eventually catch up

 

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