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xavierjd
xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience:  20+ yrs in criminal, landlord/tenant, family, & small claims
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My fiance and i recently purchased a piece of property in Wasilla

Customer Question

My fiance and i recently purchased a piece of property in Wasilla Alaska. He used his savings and inheritance to purchase it outright. He wants to protect his investment, so if i leave him, he gets the property,which I understand. But what if he dies and the property is in his name only, what happens to me? Is it better to have the property in both our names and have a pre nup stating that i give up the initial investment, or what he wants which is to have the property in his name only and he leaves it in his will to have the property divided between me and his daughter? What if he gets sick, incapacitated?
Submitted: 1 year ago.
Category: Legal
Expert:  xavierjd replied 1 year ago.
Thanks for using JustAnswer.com It will be my pleasure to assist you today.

Do you have a date that you are intending to be married?

Does he intend to leave both you and his daughter the property as joint owners? Or does he intend to leave a specific piece of the property to you and a specific piece of the property to his daughter?

Thanks
Customer: replied 1 year ago.
we want to get married asap as soon as this financial part is satisfied. This is the problem: he wants to leave the property to me but make sure his daughter gets half if the property were to be sold. Im afaid if he leaves it as an inheritance to the two of us the property would have to be sold to give her her half and we would both be subject to incredible inheritance tax
Customer: replied 1 year ago.

Not as joint owners-- she's only 12 right now--- this is for her future; this is for my life right now

Expert:  xavierjd replied 1 year ago.
Hi,

You've asked a "loaded"question. I need to look up a few things. I will be back with an answer asap. It may, however take a little time.

Thanks for your patience.
Customer: replied 1 year ago.

Okay I have to go to work right now. Leave me a message and I will get back to you asap

Expert:  xavierjd replied 1 year ago.
Hi,

The answer is that it would be wise to make a Prenuptial Agreement AND a Will to ensure that the property is disposed of as he wishes.

A Prenuptial Agreement protects both parties in the case of a divorce. It can outline how the parties want their property to be divided in the case of a divorce. Moreover, in cases of a second marriage, a Prenuptial Agreement can protect the child of the first marriage by ensuring that in the event of a divorce, certain property reverts to the husband/wife in the case of a divorce.

A Prenuptial Agreement will DEFINITELY ensure that your fiance's property will be considered as his separate property in the case of a divorce. However, not only is a Prenuptial Agreement advisable to protect your fiance's interests, it is also important to protect his child's interest as well. For example, if you do not have a Prenuptial Agreement and you divorce, it is possible that you could be awarded a portion of the property even though Alaska is NOT a community property state. In that case, your fiance's daughter may lose a portion of the property that he intended to go to her via an inheritance.

A Prenuptial Agreement is also important to protect other property. It may also protect any real property that you/your fiance have, and any investments, bank accounts, retirement accounts, etc. that you each are bringing to the marriage.

It is HIGHLY ADVISABLE that you speak to an attorney regarding the drafting of a Prenuptial Agreement. Often there are many nuances that a lay person may or may not include in a Prenuptial Agreement that can be the subject of contention by one or both parties in the case of a divorce. One of you may wish to have an attorney draft a Prenuptial Agreement. The other of you should then take it to a different attorney for his/her review. That attorney should make sure that the Prenuptial Agreement has been drafted in such a way that you/he understand EXACTLY how the property will be divided in the case of a divorce.

The Alaska has listed three criteria to be used in judging the fairness of a given prenuptial agreement in the case of a divorce:

 

1. Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?

 

2. Was the agreement unconscionable when executed?

 

3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

 

If none of the above factors are present, prenuptial agreements are generally upheld.

 

Otherwise, the Prenuptial Agreement may be struck down (not enforced) in the event of a divorce. That would make one or both of you VERY angry should a divorce occur. Even if you decide to draft a Prenuptial Agreement, you should BOTH seek SEPARATE attorneys to review the agreement prior to having the Agreement executed.

 

A Prenuptial Agreement is also advisable because in the case of a divorce, Alaska is an "equitable distribution" state. And, equitable DOES NOT necessarily mean one-half.

Below is a link to a site that explains "equitable distribution" in Alaska and how it is determined.

http://www.divorcesource.com/ds/alaska/alaska-property-division-4719.shtml

 

The more "dicey" part of your question involves the creation of a Will so that the property is passed along as your fiance wishes. These are some of the things to think about:

 

1. What if your fiance dies BEFORE he gets a chance to make a Will?
How will the property be divided?

 

2. Your fiance can ALWAYS change his Will. What does that mean to you?

 

3. What if your fiance dies and you were in the midst of a divorce? What does that mean to you?

 

4. How does your fiance best protect his daughter?

 

Below is a link to a VERY abbreviated summary of the probate laws in Alaska. As you will see, the questions above become very important.


http://info.legalzoom.com/inheritance-laws-alaska-21499.html

 

These are questions not easily answered in this type of forum. However, you may wish to contact an attorney who specializes in probate law to discuss the special circumstances of your situation. Then your husband can evaluate his options and decide how to proceed.

 

To re-cap, it may be very wise to have a Prenuptial Agreement AND create an estate plan the day after (or as soon as practicable) you are married. I am NOT trying to be glib. But, anything can happen. Hopefully, it never will. But, there are accidents, illnesses, crime, etc. that can happen at ANY time. Therefore, both you and your fiance need to create estate plans right after your marriage.

 

It sounds like you and your fiance want to be prepared as you enter into your marriage. That is VERY important. Having a prenuptial agreement and an estate plan just makes good sense.

 

I wish you and your fiance a long and happy life together. But, in the event that something happens, you will be VERY happy that you have prepared a Prenuptial Agreement and an Estate Plan.

 

I hope you find this information useful.

 

 

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

xavierjd

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

 

 

 

 

 

 

Customer: replied 1 year ago.

This was somewhat helpful but did not answer my question. You talked about his interests being protected, what about mine? I am goiing to be investing time, energy and resources to build this farm with him, I need to know how I would be compensated if we get divorced

Expert:  xavierjd replied 1 year ago.
Hi,

I apologize for the delay. I was not feeling well yesterday, and was not on the computer.

Also, I didn't mean for you to think that it was only "his" interests that are to be protected. I'm sorry if you got that impression.

The BEST way that you can ensure that your rights are protected is through making a Prenuptial Agreement that outlines how YOUR investment into the property is protected if a divorce should occur. Following are some of the ways that you can do so:

1. Make sure that there is a provision for reimbursement for any financial investment that you make into the home. That may include, but not be limited to any of YOUR money that is used to purchase ANY items used to improve the property (including tools, nails, materials, etc.). This may mean that you will have to keep a separate checking account and/or charge account and/or debit card so that you can keep a log of the dollar amount that you put into the property.

2. Make sure that there is a provision that ANY gain (or loss) in the property from the time of your marriage until the time of a divorce shall be divided equally. Moreover, you should be reimbursed for any items (as stated above) in addition to any gain/loss of the value of the property.

3. Have the property valuated BEFORE the marriage. That way, there is a base upon which you can determine any loss/gain on the property if a divorce occurs.

4. In addition to #1 and #2, place a monetary value on your time. For example, if you put in 150 hours of your time assisting in painting, and/or making home improvements, and/or landscaping the property, etc., then you shall be compensated at a rate of $$$ per hour.

5. Keep separate bank accounts and charge accounts. If you decide to have a joint account, use it for groceries, payment of utilities, or other bills that would be paid whether you were living in the property or not. If you DO NOT keep separate charge accounts and end up getting divorced, you may run into BIG problems. And, when I say keep separate charge accounts, I mean DO NOT allow him to become a signor on your account and DO NOT become a signor on ANY of his accounts. If you do so, in the event of a divorce, the debt will be divided. HOWEVER, for example, if your husband indicates that he will be responsible for the joint credit card debt, or any portion of it, and then refuses to pay or files bankruptcy, the credit card company WILL come after YOU for payment. And, the credit card company WILL win! You will be responsible to pay any joint credit card debt--even if the divorce decree indicates otherwise! Your only recourse will be to go to your divorce court to force him to reimburse you. But, if he has no money, then you will still have to pay!

6. You may also wish to include a provision in your Prenuptial Agreement to place someone other than your husband on any one, some or all of your stocks, CD's, IRA's, 401'k's, life insurance policies,or other accounts that would remain in place if a divorce occurred. You may also provide that you will each carry a life insurance policy in the amount of $$$ in which each of you will be the beneficiary of the other in case of death.

7. You may also wish to include a provision that you each have fully disclosed all of your debts and assets that you have at the time of the signing of the Prenuptial Agreement. You may wish to put in a provision that if there is a divorce, and it is found that a party had NOT disclosed all of his/her assets/debts, then there would be a monetary penalty of $$$ for failing to fully disclose.

There may be other provisions that you may wish to include, depending upon what assets/debts you are bringing to the marriage and what assets/debts he is bringing to the marriage.

Remember, a Prenuptial Agreement only comes into play if you end your marriage by divorce.

A Will/Estate plan only comes into play upon your and/or your husband's death. The probate laws are complicated, and in the event you are still married at the time of your or your husband's death, and there is NO will/estate plan, then surviving spouse obtains a certain amount of the estate by law. But, I implore you that you should BOTH see a probate lawyer RIGHT AFTER YOUR MARRIAGE to make sure that you get the share of the estate that is due to you while still protecting his child's interest.

Again, a Prenuptial Agreement will be recognized in Alaska so long as the requirements for making such an Agreement are met. Therefore, it is HIGHLY ADVISABLE that you see an attorney who specializes in Prenuptial Agreements to ensure that ALL of YOUR interests are protected.

I hope you find this information useful.

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

xavierjd

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

 


xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience: 20+ yrs in criminal, landlord/tenant, family, & small claims
xavierjd and 3 other Legal Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.
Hi,

Thank you so much for the "good service" rating and for the generous bonus! Both are greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by putting my name in the "subject" line.

Thanks again,

xavierjd

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