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Even With A Premarital Agreement You May Be Financially Liable

Question: As a divorced parent, I have tried to keep up with ways


Question: I am in the process of getting married for the third time to a man who has also been married twice before. Each of us has children by prior marriages who are grown. Although he has had some financial reversals, including a bankruptcy and tax liens, he appears to be doing fine now. Since we met three years ago, he has been helping me financially by paying my mortgage and car payments which he says he will continue to do. Now that we have decided to marry, I became nervous and thought it would be a good idea to get a premarital agreement; however, he balked and said the we don't need one. Is there any way, short of an agreement, for me to protect myself?

Answer: Although premarital agreements may be binding between a husband and wife, third parties -- like the IRS -- are not bound. And there are other potential problems, some of which are as follows: (1) Without a waiver of estate rights, your spouse will be entitled to receive an "elective share" -- generally one-third -- of your estate, no matter what your will may provide. (2) If you file joint income tax returns with your spouse during your marriage, you are, in effect, signing a note to be responsible for past due taxes, interest, and penalties that you may not even know about. (3) Under the "necessaries doctrine," you may be responsible for your spouse's medical and other bills. (4) If your spouse enters a nursing home and spends all of his assets, before he will be able to qualify for Medicaid, you will be required to spend down your assets to the maximum allowed in your state -- generally about $70,000 and a house. (5) By your husband making your mortgage payments, he is probably gaining an equitable interest in your property -- and if you live in a community property state, different rules may apply. In short, if your husband-to-be has tax liens and a bankruptcy, we think you are getting yourself into a risky situation, with or without a premarital agreement. We strongly suggest that you contact an experienced lawyer in your state to help you make some decisions.

Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is seen in newspapers throughout the United States and can be found on the Internet at

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