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Dear Fran: Congratulations on your upcoming nuptuals!
Smart of you to search out some information first, before you get married or enter any contracts - it is very typical that persons getting married at your age have estate planning in place and families who have expectations about what will happen to you, and expectations about your estate planning. If you don't have a will, a DPOA and a health care directive, you should.
A pre-nup has to be fair on its face, and has to reflect that each party had an opportunity to consult with their very own attorney before signing it.
"Fair on its face" means that when a judge reads it, he has to see that one party is not benefitting at the other's expense. A pre-nup in your situation should provide that each of you has accumulated property which you prefer to leave to your respective estates, rather than willing to the other at the expense of your estates, or by operation of law when either of you does not have a will. That is why this is a great time to update your estate planning.
Having an opportunity to consult with your own attorney means exactly what it says. No responsible attorney is going to advise both you and your fiance as your interests could diverge and the attorney could not then help either of you. I know this makes no sense to most people, but attorneys cannot represent both opposing sides. It cannot be done because the rules of professional conduct flatly prohibit this.
The trick is finding two separate attorneys who will each represent one of you and draft/review a pre nup without costing you a fortune. A well regarded local firm can be a great resource for you right now. If you use Google and search for "American Association of Matrimonial Lawyers" for Erie, PA, you will find a firm like this. Pre-nup work is a welcome change of pace. Should not be too pricey; you are talking about a couple of hours worth of work. Hope this helps. XXXXX XXXXX
I agree with you that you don't want to be left bereft and with nothing in the event he passes first.
You should have a life estate in his real property so you have a roof over your head in the event that something happens to him first. "Life estate" is a term of art. It gives you the right to remain in the property until your death. If you don't choose to stay, you could rent the place out to produce income with which to support yourself. Neither of you should devise everything you have to the other, because that would create an unintended interest contrary to your families' plans.
But your planning should encompass all possible outcomes - he goes first, you go first, or you both go at the same time. Even though one outcome is more likely, you still need to address the other things that could happen. The best laid plans of mice and men, etc.
If your plan is to sell your real property, you should conduct that sale without your new husband being part of the transaction. PA is not a community property state. You can segregate the funds resulting from the sale of your real property in your own separate bank account to use as you see fit. You can name one of your children as a co-signer on the account and the funds can (if handled properly) pass to your children outside of probate. But please get a lawyer so this happens the way you intend.
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