If a person is getting remarried and wants to protect their assets, do they need a prenup or could a will suffice?

By Mary Ann Burmester
December 29, 2016

Not every couple needs a prenuptial agreement even in that scenario. The problem with a will is that you can change it at any time and your spouse does not know about it or does not need to know about it.

For example, a couple is in a second marriage and they have children and grandchildren from prior relationships, they get together in their 60s or 70s and everything is happy and they're doing well, and they go and revise their wills. The husband and wife think that each is leaving the other one whatever property it may be, maybe circumstances change in the marriage, maybe the adult children get involved. The husband can change his will, for example, and the wife has no idea.

The will is not the way to protect your assets, and it's also not the best way for husband and wife to really know what's going on with the property. In order for a prenuptial agreement to be valid, both spouses have to have full knowledge of all property and debt. They should also be privy to current wills and trusts. They should have their own independent attorney to advise them. You're not allowed to sign the prenuptial agreement so close to the wedding in New Mexico that it seems like coercion. We don’t have a minimum number of days prior to the wedding, but if someone were to say here's the prenup and we're getting married in two days, that's generally not going to be enough time. A prenuptial agreement is a valid and binding contract if you had enough time, you had full disclosure, and you voluntarily and knowingly signed that agreement.

What a prenup can do with regards to prior children is it identifies what is the community property of the couple and what is the separate property. In New Mexico, you can convert community property to separate property. For example, wages or income that you accrue while married is typically considered community income. But in a prenuptial agreement, you can say all wages and earnings are still going to be the separate property of the person earning it. If that's the case, if you want the benefit of your separate property and separate wages to go to your own children of a prior marriage, you can do that in a prenuptial agreement. The one thing you can't do in a prenuptial agreement in a New Mexico law is waive alimony. You can't say in advance neither party will pay spousal support or alimony to the other, because you don’t have the right to alimony until after you are in fact married.

Mary Ann Burmester is a family lawyer practicing in Albuquerque, New Mexico and has more than 25 years of experience in family law. To learn more about Mary and her firm, NM Divorce & Custody Law LLC, visit www.nmdivorcecustody.com.

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December 29, 2016
Categories:  FAQs

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