Dear Quentin,
My mother died just over a year ago. For the longest time I had thought that my parents had a will and/or a trust set up, in case they both passed and care needed to be established for myself and my siblings. I came to find out neither was ever done when we were younger, but thankfully all of my siblings have made it to adulthood, and my dad had recently retired.
Two months after my mother passed, my father showed some sense, for a short period of time, and ran to a lawyer’s office to have a will and a trust set up in case of his untimely death, making my sister executor because she resides in the same state he currently lives in. He has worked hard in his career in California, and has amassed a decent nest egg.
I asked him to also inquire about a prenuptial agreement in case of a future spouse. According to my dad, a future spouse would not be entitled to the retirement he earned in his career because she came after his working years. However, if the potential spouse was still working, my dad would be entitled to half her earnings without a prenup, should they split.
‘Now he is engaged’
Fast forward to today. My dad’s behavior has been secretive and evasive these past months, and now he is engaged. She is still of working age and has a more than decent wage/job, and she has a taste for finer things in life. However, I recently found out that she is intending to stop working indefinitely and they plan to move out of state, moving from California to Texas in six months.
Along with my dad’s behavior, he seems to want to get married as soon as possible. Given the sporadic communication I have received from him and his acting like a teenager in love, it does not sound like he is going to get a prenup, or has solid reasons for his desires. I understand that this is my dad’s choice, and he can very well support this person financially.
I am worried that he isn’t of sound mind in his hasty decisions spurred by grief from the death of my mother. I do want him to be happy, but I worry this woman may bleed him dry. Is a prenup something he should be encouraged to get? Is it applicable in a different state? What questions can I ask her in front of him to verify her financial integrity and goals?
Worried Daughter
Dear Worried,
If we’re honest with ourselves, most of us like the finer things in life. It’s more often considered distasteful when applied to second wives and stepmothers.
Texas is a community-property state, so everything earned before the marriage is separate property. That bodes well for your father — given his age — in the event of a divorce. He’s clearly someone who lives for today, as evidenced by the fact that he never wrote a will or set up a trust for his children. But he realized how quickly things can change after your mother died. A financial adviser or lawyer would help light a fire under him prior to his second marriage.
A prenup is the best way to ensure that your father’s assets are locked tight before he says, “I do.” You can sell it to your father as a way for both parties to protect themselves and, given that your father has children, it makes sense for him to protect their inheritance. Yes, prenups should be written taking into account the laws of the state where the couple sets up residence. Each state has its own set of rules on marriage, divorce and even prenuptial agreements.
Something you did not mention in your letter: Your father may also wish to make a new will to ensure his wife is taken care of after he dies. This could, for example, include a life estate where she gets to live in his home for the remainder of her life, should he die before her. She could be a golddigger, or she could be a genuine person who is in love with your father and wants to make him happy. Don’t rush to judge her. Make a genuine effort to know her instead.
Social Security vs. 401(k)s
Social Security spousal benefits and a military pension are treated differently from private retirement accounts like a 401(k). Assuming he has one, the lion’s share would have been earned prior to his marriage. But he should get a summary of the plan prior to the wedding. Conversely, all money earned during his second marriage is considered community property, and that could include interest accumulated on the capital amount during the marriage.
The length of the marriage matters. Benefits for a divorced spouse apply when “your marriage lasted 10 years or longer, your ex-spouse is unmarried, your ex-spouse is age 62 or older, the benefit that your ex-spouse is entitled to receive based on their own work is less than the benefit they would receive based on your work, you are entitled to Social Security retirement or disability benefits,” the Social Security Administration says.
Your father is in love. Some people are happier in a committed relationship, and need to make wedding vows in order to give them that feeling of contentment. While you can suggest your father get a medical evaluation to make sure he’s in good shape before making such a move, think carefully before weighing in with questions for your future mother-in-law about her financial situation. You could end up damaging the relationship between you and your father instead.
People reveal themselves — for better or for worse — if you give them half a chance and get to know them. You may be pleasantly surprised.
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