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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27686
Experience:  25 years experience as practicing attorney
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i am getting married after having been with my boyfriend for

Customer Question

i am getting married after having been with my boyfriend for 17 years. we do not commingle our finances and we don't intend to commingle our finances after we get married. do we need a prenuptial agreement? we live in California.
Submitted: 1 year ago.
Category: Family Law
Expert:  Dave Kennett replied 1 year ago.
Dear JACUSTOMER - It depends on whether you are talking about a possible divorce in the future or about what happens with respect to your estate. If you keep the assets separate then in a divorce you would be able to keep those assets although there could be some division of any increase in value during the marriage. Unless you plan to leave your estates to each other in your wills you may want a pre nuptial agreement since the surviving spouse can elect to take against the will and receive their statutory amount from your assets, even though they are in your separate accounts. My suggestion to anyone in your situation is to get a pre nuptial agreement so that there are no disputes or problems later on, either in a divorce or an estate. It protects both parties and allows you to do as you please with respect to your individual estates.
Customer: replied 1 year ago.


well, I would want it to protect me in the event of a divorce and to protect my daughter. I am 65. my daughter is 38. my bf is 61. I am retired. have several small sources of income. my bf is still working although his pay is very low. he was lucky to get a menial job at age 60. who is to say that I may get an increase in division from his assets?


 


I own my own home and it is valued at $800k with no mortgage.


 


with a trust, would we have our own separate trusts or would it be a joint trust?


 


I really find this whole business rather distasteful. and in many ways, I question whether it is really necessary based on our ages and the fact that we've already been together for so long.


 


 

Expert:  Dave Kennett replied 1 year ago.
I can only tell you how the laws operate and how to protect your assets. If you place your assets into a separate trust and he has a trust then that would be a separate entity that would survive a divorce or death but it is far more expensive and complicated than a simple pre nuptial agreement. There are all sorts of trusts that can be formed but it costs money and you lose some control over your assets. If you have been together for so long I would assume you could rationally discuss what both of you want should one of you pass away or if by some chance the marriage doesn't work out and there is a divorce. A pre nuptial agreement is specifically designed for persons in your situation and there is nothing about it that should be "distasteful". It can be a lot more distasteful to end up in a situation where your daughter is left out of your estate because of improper financial planning and the pre nuptial is the best way to accomplish what you want and still have flexibility with your assets. Just because you have a pre nup doesn't mean you still can't leave your husband a share of your estate but it guarantees that you can leave your daughter whatever you please. The pre nup really offers you the best of both worlds. You can enjoy your marriage and still have the peace of mind knowing your daughter is protected should you pass away before your husband. If he has children it would operate in reverse as to him.
Customer: replied 1 year ago.

if we have a prenup, would I still need a trust?


what is the cheapest way to do a prenup? I don't want to spend a lot of money.


 

Expert:  Dave Kennett replied 1 year ago.
I see no need for a trust but keep in mind that this website is for general information purposes only so I cannot provide specific legal advice. As far as cost for a pre nup the rates that attorneys charge in different areas vary so it would be difficult to tell you exactly what it would cost. My guess would be approximately $500-750 but that is just a guess. You can contact several attorneys and obtain an estimate of a fee for this preparation.
Customer: replied 1 year ago.

would we need our own attorney or will one suffice? what about the various "do your own" prenups, any opinion, dave?


 

Expert:  Dave Kennett replied 1 year ago.
Generally one attorney should suffice assuming the two of you agree on everything. It's really quite simple if all you are seeking is protection of your individual assets that are not going to be commingled. You can also buy a prenup online from one of the legal forms services which should suffice for this purpose.
Customer: replied 1 year ago.

I want to think about this and i'll get back to you if I have any more
questions. thanks.

Expert:  Dave Kennett replied 1 year ago.
You can respond at any time but please remember that I am not on line 24/7 so please be patient and I will respond. - Dave
Customer: replied 1 year ago.


so, if I have a prenup and no trust, would I avoid probate?

Expert:  Dave Kennett replied 1 year ago.
I was answering the question from the standpoint of you being able to retain your prior owned assets and not have them become part of a divorce or your estate should you die before your husband. This has nothing to do with probate or avoiding probate as that is an entirely separate issue. There are various ways to avoid probate but it is not always the best approach since it can also involve losing control of your assets if they are in a trust or in a joint tenancy. It would be impossible for me to completely review your entire financial situation from here to offer you a good financial plan. I know it is a popular conception that it is good to avoid probate at all costs but that is not always the best approach in every situation. You are now getting into estate planning rather than protecting prior owned assets in a marriage. If your daughter is your only child you can add her name on your bank accounts and creat a "payable on death" account or you can add her name on your real estate as joint with survivorship and she would inherit the real estate outside of probate. But if you do that then your daughter would have to sign if you ever wanted to sell the property so you would lose some control over your own real estate just so probate could be avoided. The pre nup is relatively simple but financial planning to avoid probate is much more complicated and you really should contact a local financial planner to review your overall financial condition and come up with a plan to suit your needs.
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27686
Experience: 25 years experience as practicing attorney
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