Unfortunately, it happens all the time—a client’s longtime spouse dies, a new suitor swoops in, and they quickly marry against the advice of family, friends, and advisors. What happens next can be a nightmare for the family, resulting in costly legal battles. Even worse, many people in this situation spend their final days without their children and loved ones by their side, their children having been blocked out by the “new spouse.” They are prisoners to whomever the new spouse allows to visit. I have seen it happen with clients who have modest assets to high net worth clients, and it can tear families apart.
Do not leave your family to live in this nightmare. Your best defense is a strong team around you.
Make sure you have an experienced estate planning attorney, a sophisticated financial advisor and accountant, and other family and friends with whom you maintain regular contact. Make sure you introduce your family to your team of advisors and consider giving your attorney the ability to speak with your family about certain matters. And this part is especially important—my recommendation is to never remarry without a prenuptial agreement.
As much as we try, not all our clients take our advice. Soon after his wife died, a client of mine called to say he wanted to remarry. When I described what a prenuptial agreement would entail, he balked. He was of an older generation where the man in the relationship took care of the woman, and he did not want to bother with a prenuptial agreement. I told him if he did not want to do a prenuptial agreement he should instead “live in sin” as a safer option. Unbeknownst to me, he ended up marrying her, and a few years later, his children reached out, telling me their dad had died and they had not seen him in years. The new spouse had kept them away. Stories like this are not uncommon, and they are devastating.
Another client did not want to insult his girlfriend by asking her to sign a prenuptial agreement. As much as he understood that the agreement would protect him and his children, he was swept up in the excitement of the new relationship. She kept saying that she wanted a prenuptial agreement but kept finding excuses for not making it a priority.
Often there are other factors at play, particularly as clients age and health issues set in. It is common that a couple in a long-term marriage will lean on each other as they cope with the effects of aging; maybe one spouse is losing his hearing, and the other is losing her sight, but together they can see and hear just fine. Perhaps one spouse is experiencing dementia, and she may rely on her husband to offset her memory loss. When he dies, she may be feeling scared and vulnerable, leading her to take up with a new boyfriend who can fill the role of her deceased husband.
I was involved in a situation like this where the husband died, and soon after, a new man entered the wife’s life. She had been experiencing dementia, but it had been masked by her husband’s ability to help her cope. This new suitor began to spend lavishly using the wife’s credit card and tried to gain access to her financial accounts. Fortunately, her children were alerted to the sudden increase in spending by her financial advisors.
To protect yourself, insulate yourself with your team of advisors. Empower them to protect you when you cannot protect yourself:
· Name a trusted contact on your accounts to whom your financial advisor can reach out if they notice suspicious activity on the account.
· Introduce your advisors to your children and consider holding yearly meetings so they can get to know one another.
· Authorize your lawyer to speak with your children about certain matters. Attorneys have an obligation to keep client conversations confidential, but you can give your attorney permission to speak with your children.
· Authorize your medical providers to speak to your children or another appropriate person
If you do plan to marry, put a prenuptial agreement in place and consider the following:
· Ensure that fiduciary roles such as executor and trustee stay with your children, friends, or trusted advisors instead of with your new spouse.
· Prohibit your new spouse from serving as your power of attorney and health care proxy. Remember—if your new spouse is named in your health care proxy, she can prevent your children from seeing you.
· Include a clause that if you need a guardian or conservator, your new spouse will not serve in those roles.
· If your new spouse will be provided for on your death, consider staggering the payment to her so that she receives more as you live longer. We want to incentivize her to keep you alive and in good health.
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