any.

>> Good evening and welcome to PBS Fort Wayne.

You're watching LIFE Ahead.

What does this show if you've never watched before we try to give you education and information that might help you with some decisions you have to make in your LIFE Ahead.

And I have special guests here this evening that are going to really help you with our topic this evening and we welcome phone calls.

This number will appear on the bottom of the screen periodically here during this show.

So please give us a call with any questions you have.

I'm Sandy Thomson about the stars of the show tonight are sitting over here.

>> I'd like for you to read me because she's been on many, many times.

>> Jessica Lawson, nice to have you back as always.

Great to be back.

>> And we have Ryan Gardner on with us again and you've been on a number of times Ryan three one, two , three.

>> Oh, you're a pro.

We don't have to give you any instructions.

Well, our main topic tonight is going to be about prenup prenuptial agreements for people later in life .

>> I think this is really fascinating.

Jessica, you chose this topic.

>> So why is this a common thing?

It is.

It's a surprisingly common thing especially for elder law attorneys because our clients we've worked with over the years maybe through estate planning as a couple with a previous spouse but then as life changes and maybe they does and it does and we've lost a loved one and we've met new companions, people are really considering marriage and the pros and cons so they want to have conversations before maybe even getting engaged about should we get married, should we not get married?

Why would we why wouldn't we?

And then if we do, should we have a prenuptial agreement?

So it's a very common thing for elder law attorneys to experience.

>> Now I have to tell you I ask Ryan just before the show started if mostly men or women are the ones that would come to an attorney to seek a prenuptial agreement and your answer was I would say it's equal because even if let's say the to be wife is the one who initiates the process the to be wife's lawyers are going to recommend to the to be husband you need your own separate legal representation.

>> You were pretty adamant about you can't both have one attorney.

You need separate attorneys when you're working out this prenuptial.

>> Yes, certainly yes.

Even though that the husband wife may agree upon everything and they both want these protections under the contract which is what the prenuptial agreement is they're still adverse parties and they still would have different interests to protect and so they need their own separate legal representation.

>> All right.

That makes sense.

Certainly does not.

Jessica, why are older people or people may be looking at a second marriage or marrying later in life and I think Ryan, didn't you say after forty is when people would really seek a prenuptial?

>> I certainly see an increase in individuals who are 40 and older, whether it's first or second, whether first or second and primarily it's because at that point in time you probably are more likely to have children.

Yeah, and you certainly are more likely hopefully to have more things to protect such as assets that's what I was going to ask you, Jessica, about why it's later in life .

>> That's exactly right because so many people later in life are going to have more wealth that they want to protect for their children.

They want to make sure that their things stay with their side of the family.

>> They're also concerned about their health and so they want to make sure, you know, if if I'm taking on somebody else's medical issues or maybe medical debt and things of that nature and so they want to talk about those issues as well.

>> Oh, all right.

Now don't forget give us a call with your questions.

We want to make sure we help fill you in tonight with what you might want to know.

>> What can a prenuptial, Ryan, do to protect or control your assets?

>> Sure.

The first thing is a prenuptial agreement really establishes what's going to be separate property or what's going to be considered joint or marital property.

So separate property property that you're bringing into the marriage for example, you can protect you can be designated as separate property.

I own this house and I want to make sure that if you divorce me one the house is going to leave with me without being counted against me, if you will.

>> Yeah.

Versus marital property property that's acquired during the marriage joint property you can dictate going into the marriage how that property is going to be divided.

>> How is it usually most often I see 50/50 equal division and that is the presumption in the law in the state of Indiana of the equal division.

But I also see people dividing it on a pro rata basis.

For example husband and wife.

No well we're going to buy a new house after we get married and wife is going to contribute seventy percent to the costs in acquiring and maintaining that house.

>> Yeah, well wife could say well if you divorce me I want seventy percent of the house.

>> I see.

OK what do you think Jessica?

How can you add to the so it's also the same concern for what happens if I pass away OK and so they're wanting to make sure that the estate planning documents are seen through and honored with that prenuptial agreement throughout their whole life .

So the same example that Ryan gave the 70 30 split we would want to make sure those documents are in their estate that wish or that desire was continued on in their estate planning.

So whether it's a will or a trust, yeah, we're going to make sure that either the the property title is set up that way or maybe it's designated in a will or a trust to make sure that that desire and that that's being honored.

>> I'm going to continue to talk about how the prenuptial agreement and estate planning are involved.

But we just had a call from Jerry and he says what are some good ways to start the prenuptial agreement discussion?

That's a great question.

>> OK, Ryan, you're smiling so you have to answer this one.

That's a tough question.

That's what I'm sure.

Yeah, I would say, Jerry, to start that conversation early with your hubby spouse you certainly don't want to spring it on them the week before you say I do you want to, you know, establish your concerns early in that relationship.

You know, certainly after you get through the engagement process.

But I would have it early and I would you know, discuss your concerns, why you need it and what exactly are you looking to protect whether or not it's a future inheritance for children as Jessica suggested or just your own financial well-being so early?

>> What do you think, Jessica, in terms of like dealing with discussion with this to be person?

>> I agree.

I think it's early and I think it really needs to come from you.

A lot of times as an elder law attorney clients will come to me and talk a lot about how their children have this concern or somebody else in their life is voicing this concern and so to really make it be about the couple and what the couple desire for their married life and how they want to treat their assets throughout that process, I want to make sure you're protected.

Your children are protected.

I want to make sure my children are protected and so really trying to keep that focus on the couple and not having recognizing those outside influences but not making that be the primary reason for the conversation.

>> I can understand though that you know, because as you've talked about that it's it's later in life when you would tend to have more assets and maybe if you've had children one or the other of you and they become adults, they might stand up there and say hey, what about me?

You Ryan do you have that?

>> I know you deal with this situation a lot.

Do you have that kind of thing that children of the older couple come to you?

>> I do.

It's usually they usually accompany their parents for that kind of situation and a lot of times honestly as a family law practitioner I usually bring in an elder law or an estate planner like Jessica.

>> Yeah, because a lot of those concerns are so much estate and inheritance driven and you know, it's well, my son brings up this good point.

He wants to make sure that that the lake house stays in the family.

Yeah.

And then so I say well let's start with the estate planning side.

Let's make sure your dad's estate planning is in line so we can make sure that happens and then it makes my job as the prenuptial agreement drafter of the family law attorney to draft a prenuptial agreement that mirrors the estate planning for husband or wife.

>> Does it ever happen that it doesn't agree I mean if somebody hasn't done their work before and Jessica in terms of getting well or beneficiaries in line, in my experience we've been successful and getting the prenuptial signed and the marriage goes through.

>> Yeah, there are some difficult conversations along the way because you really do have to disclose at that point when we're talking about the prenuptial agreement all assets, all debt what is your income?

How are you really going to handle utilities and expenses of the house?

>> And so you're having some really in-depth conversations that can be challenging so it may take us a little longer than we anticipated to get through that prenuptial process.

But that's to Ryan's point of start early.

>> Don't don't call me a week before the wedding.

I think somebody might be pretty upset about that beside where they didn't know that was coming.

We have another call coming in here from Maggie in.

Let me read that to you from our teleprompter.

We have by the way, a phone operator back in the control room that will take your phone calls and if you would speak to us live, she'll just send your call out here to the studio and that way if Jessica or Ryan have a question back to you, you're right there on the phone.

>> If you don't want to talk on the air live, that's fine.

The phone operator will take your question and send it out here to us on the teleprompter, which is what Maggie has done.

She said is there anything similar to a prenuptial agreement for couples who are already married?

That was a question I was going to ask too.

>> So I'm glad you brought that up.

Maggie Post-nuptial is that a thing, Ryan?

It is.

It's it's a little bit trickier than a prenuptial agreement belies the concept of a prenuptial agreement.

I mean it's a contract.

OK, sure.

So contract 101 you have to have an exchange of goods or services or you have to have a bang for your buck if you will.

Yeah, right.

I promise you this and you're going to promise me this back.

Right.

And that's what the contract is based upon and for a prenuptial agreement the promises I promise to marry you.

OK, so for post-nuptial agreement you're already married and the law doesn't recognize I'm going to stay married to you.

That's not good consideration as the law would call it.

So there are ways to have a valid post-nuptial agreement.

>> The the safest way is a reconciliation agreement really.

Well, what's the difference?

>> What do you mean by reconciliation?

Agrella Reconciliation is the consideration meaning the marriage is on the rocks.

Maybe there is even a divorce pending before the court or a physical separation of the parties.

Well, I agree to reconcile or move back in with you, honey.

If we do these certain things if you make these certain promises to me so it is possible it's a lot less common and sometimes it is harder to enforce.

>> Hmm.

That's that's interesting.

>> Jessica, can you add to this like what would make it more complicated or would it how would it get mixed up with estate planning of the of the two people that are not very good terms right now?

>> It's where we really do recommend that you get two different attorneys at that point.

So if you aren't already in an active legal separation or pending divorce, that is really where we need to have to separate attorneys because you're probably thinking different about your estate planning as well as your marriage and so we really do need to figure out where the issues lie so that we can either plan around through a post-nuptial agreement or through your estate planning documents.

>> OK, all right.

Well this is a popular topic.

Obviously we have yet another call coming in here.

This is from Susan and she said if the contact or contents of a will conflict with a prenuptial agreement which takes prior a day.

All right.

Let's start with you, Jessica.

And I thought that was an interesting thing I want to know about as well which takes precedence.

>> So it's you have to read it both.

It's kind of at the same time.

So depending on your prenuptial agreement, your prenuptial agreement may have some sort of paragraph in it that says that I can modify my documents after this is signed and it won't be a violation of this agreement.

>> OK, so you're really have to start with the prenuptial agreement, see what that says and then look at the will and see if if there is a conflict and if that conflict is OK. >> OK, right.

I want you to to jump in on this too.

That's a pretty pretty expansive question right there it is and it's a good question I would say and kind of build off Jessica.

The prenuptial agreement really is the only document that matters in the divorce setting your estate planning documents your will.

It's not going to contemplate what's going to happen to property in the event of a divorce.

The prenuptial agreement covers that.

So I would say as far as priority goes in the event of a divorce you're going to look at your prenuptial agreement in the event of death of a spouse .

You're going to look at the will first.

The prenuptial agreement may have some impact on the estate and distribution of property of death but primarily the will.

So that's the priority would fall just to make sure I'm clear.

>> I know because you all talked about this before on LIFE Ahead if you have a beneficiary yes.

For non Iara or some investment but your will conflicts with that the beneficiary takes precedence and that's what they will get.

What about if the prenup is different than what your estate planning or beneficiaries are?

>> It's going to be the kind of the same thing it's going to be it could very well have been done intentionally.

So there are lots of times in estate planning we say OK, well I have this bucket of funds over here.

I have this IRA in this life insurance.

Yeah.

I want this to go to the grandkids but my will has my house and my car and I want that to go to my children.

So it was very intentional to have different distributions.

>> So it's the same thing when you're considering prenuptial agreements, beneficiary designations and a will that may have been very intentional.

Of course people are always thinking about this kind of in a will contest type of situation or a trust contest situation.

>> Sure.

And so that's where it becomes very, very factual and they may play on each other and that conflict may not have been as intentional as somebody like me would consider it to be.

>> So we really kind of have to peel back the layers of the onion, so to speak.

>> Sounds like there can be a lot of layers to peel in some cases or appeal that Ryan's the one usually has a joke.

>> How can we ensure that this prenuptial agreement is in force?

>> Ryan really two of the things we've already covered I would say are two of the most important factors.

One, talk to your spouse early, get the prenuptial agreement taken care of early signing the prenuptial agreement at the altar at the church is not going to look good if it's ever challenged.

Secondly, ensuring that both to be spouses have their own separate legal representation is really going to bolster that agreement because everybody then had an opportunity to talk to a lawyer, figure out what are the pros and the cons, what is the law say what am I protecting and what is my exposure?

Finally and again we already talked about this a full disclosure of property if one spouse is holding back a nest egg of money or you know, again I go back to the lake houses all the time because this is Lake Country.

Yes, it is.

But if somebody is not disclosing all their assets or even all their debts, that's fraud.

And then the contract which again that's what the prenuptial agreement is the contract can be deemed to be invalid the whole contract at that point.

>> Correct.

Wow.

Then what do you do then in in the event of a divorce you're without a prenuptial agreement and you're relying on the laws of the state of Indiana which may not may or may not be to your benefit.

>> Correct.

OK, Jessica, let's talk about why you need a lawyer.

I want you to explain to people and we've talked about how complex it can be but why is it important to have a lawyer involved if you're going to do a prenup, whether it's a young a young couple or an elder couple?

>> So I look at a lot from as an elder law attorney, not from a family law perspective.

So I'm not always thinking about divorce or maybe I'm thinking about divorce but really a lot of times when I am talking to somebody about a premarital agreement I'm talking truly about the pros and cons of getting married because I deal a lot with Medicaid benefits.

>> Oh, Medicaid that's an important topic to talk about.

>> Tell me about the complex so that premarital agreements provide no protection when it comes to Medicaid planning.

So if you are married and you have a premarital agreement and you say well everything's mine and everything's his and we're just to kind of separate people but we're married Medicaid doesn't really care about that.

You are all one giant pot and it's all considered together and so there are great Medicaid spousal impoverishment rules but that may create a lot of strange family dynamics that you didn't want to wander into.

>> So we really have to talk about everybody's family makeup as far as how many kids do we have?

Is everybody getting along?

Have your kids even met?

So there are a lot of things to consider even negotiating whether or not to get married from my perspective as an elder law attorney because I am thinking about that Medicaid piece of not just OK, well what happens if you if you pass away are your your will and your wish is going to get honored or are you or the divorce aspect of it.

Hmm.

OK, all right.

That kind of makes sense again you still have to answer the call us here at (969) 27 twenty with a question that you might have.

>> I'm going to go for you Ryan.

Let's say a couple has his had a prenuptial agreement but it's not agreeing with their estate planning it.

>> Do you really get into conflict sometimes or as Jessica mentioned the extended family, the children of one or the other might disagree with what has been decided constantly.

Lots of conflicts arise from parents decisions and prenuptial agreements because there's there's that trickle down effect it affects the next generation.

Sure does.

Yeah, it certainly does.

And and a lot of times it's well who goes first does does Dad go first and then that affects Dad's side because then dad's side of the family probably isn't going to get as much as mom's side of the family because mom then usually under your typical scenario obtains or rather inherits everything that dad owned.

So your prenuptial agreement can control that better rather than what just the law assumes .

And one thing Jessica and I talk about quite a bit in these family conflicts and prenuptial agreements and control is what's called the spousal allowance and in a prenuptial agreement spouse is often a common provision is to waive the spousal allowance.

So you know, we're talking about prenuptial agreements for for older people and we usually assume those to be second marriages under the law.

The spousal allowance for a second marriage, a spouse with no children of that marriage.

The law presumes the spouse will get the first twenty five thousand dollars the decedent's estate they'll receive one third the value of all real property.

So land houses, lake houses again like houses.

That's right.

And then also one quarter the value of all personal property is this estate regulation.

That's the state law.

That's Indiana code .

OK and so we call that generally the spousal allowance.

Every spouse is guaranteed that that's kind of a minimum OK law once a spouse a surviving spouse to receive now obviously you can leave your spouse everything in your will.

You can leave your spouse anything more than the spousal allowance if your deceased spouse leaves you less than the allowance you can elect against the will and then you will get that spousal allowance.

The only way that a spouse can't do that is if they waive that and one of the ways that you can guarantee a waiver is in a prenuptial agreement.

And so that's why it's one of the most common privies wins especially when you're talking about estate planning and prenuptial agreement.

>> It is very complicated.

>> It's a good thing that we're talking about this tonight.

I want to go back and ask we kind of touched on a little bit but can this be changed?

>> Say you've done a prenuptial agreement.

Maybe you've even agreed to a post-nuptial agreement.

>> Can you change that?

Jessica?

Well, as Ryan mentioned earlier, it comes down to contract law.

This is one of those things that lawyers get taught right away and law school is there still has to be that kind of consideration, that for tat sort of situation.

And so unless your marriage is on the rocks, unless you really are truly contemplating divorce, it is hard to change it after it's been signed.

>> Oh, because you're not really giving up something.

You're the the ability to stay in the marriage isn't almost enough.

>> It's got to be some sort of documentation or some sort of history of there being conflict and that this reconciliation is really the consideration.

So it gets a lot harder to change it after it's been signed afterwards.

>> OK, Ryan, you've had lots of experience.

Can you contribute to this question?

>> She hit the nail on the head.

We're looking for consideration and reconciliation is always the first thing I go to.

I have seen people essentially buy out provisions buyout buyout.

Sure.

Certainly where you know, husband brings a home into the end of the marriage.

Well and wife and husband's cash poor wife's not husband want some cash?

Honey, I'm going to sell the house.

>> We're going to change that term of the provision I said so to give you cash instead of the House, correct?

>> Yeah.

He still gets to live in the house presumptively but now he's going to have some cash but he so there are ways to do it.

It is not easy though and so again to change it, to change it or to amend it or to add a new provision.

>> So again that's really why the importance of consulting with a lawyer comes in to make sure that whatever you're agreeing to even even if on that day in time husband and wife agree to it, who knows what's going to happen ten years down the road if now you're staring down the barrel of a divorce?

>> Yeah, yeah.

It just really gets so messy.

We just have a minute or so.

Jessica, what recommendation or advice would you give to people whether you're newly married or second marriage or married the first time in later life ?

>> What's what can you give them as advice?

These are going to be hard conversations to have.

There's no doubt about it.

But you're not going to regret having them because having these open conversations are going to lead you to some decisions that are appropriate for you and your family.

So start early, allow yourself time to sit with those conversations because a lot of times wife or husband to be will meet with one of us.

They'll hear our side of things.

Then the other side will go talk to their lawyer and hear their side of things and then they will come together and they'll talk about it and they need time to really sit with those conversations and to just to really kind of process it.

So really give yourself plenty of time to really think about the consequences of what the marriage means to you and how you want your assets treated.

>> That's such good advice.

>> It really is.

You know, I think one of the things that strikes me in terms of I like the way you said let your decisions sit with you for a while.

>> Do you usually do that, Ryan very quickly?

Definitely.

I usually tell people when they come to me for the first time, you know, you go home and you sleep on it, you pray about it and you talk to your loved ones, you need to reflect on it before you make any rash decisions.

>> These are long term decisions for you really.

>> Well, I hate that our time is up already.

I hope we've given you some food for thought if you will here.

Meanwhile, I want to thank again Ryan Gardner and Jessica Thorson for your expert advice this evening for the rest of us, stay healthy, stay safe and we'll see you again next Wednesday night right here at seven thirty.

Good night