By Kimberlee Davis, J.D., CDFA®
Kimberlee Davis is a Partner and Managing Director in The Bahnsen Group, a wealth management practice with offices in Newport Beach, California and New York City. She is the Financial Planning Director and a Certified Divorce Financial Analyst.
Changing the love narrative…
Whether we are single, a young woman beginning a career, divorced or widowed, we may have found that special someone who we love and are considering living with or marrying. This is a wonderful development, and time of joy! We want to have sustained happiness in this relationship and allow all the things that money can’t buy to flourish. Whether these decisions are made after periods of contemplation or impulsively, they will alter the course of our life, and with a bit of preparation and planning prior to taking the leap, we can secure certain financially advantageous outcomes for both parties if things change down the line. The preventative advice herein applies to both women and men – all people! So, as the old adage states: “plan for what is difficult while it is easy…”
It is time to establish a new tradition and change the paradigm. With the ever-changing roles of women at home and at work, more women are in the workforce, the primary breadwinners, and often have significant assets from employment, divorce or death of a spouse. If you are considering cohabiting or marrying, protecting your assets and future financial security should be paramount in your mind, and not an after-thought. It is about nurturing and protecting your estate while you are living.
We need to be proactive because we cannot possibly envision all the twists and turns of life, some of which can cause us some serious problems and put our future and our family’s future at risk. I am encouraging everyone to have these conversations before we call the moving company or walk down the aisle. Let’s change the love narrative to include preparation and prevention – it doesn’t mean you love your partner any less.
With this in mind, I sat down with Christy Lewis, J.D., LL.M, a well-respected estate and business planning attorney, at Lewis Business and Estate Planning, APC. Christy explained that pre and post marital planning is an important component of the estate planning process, as it preserves and protects your current estate, as well as the assets you accumulate in the future. She then explained the legal tools available to preserve and protect an estate—specifically, how various agreements can be entered into at various life stages, agreements which can ultimately protect your estate in the event of separation, divorce and/or death. Following are some of the topics we discussed:
The First Step
Establish a Separate Property Trust
A separate property trust is a revocable living trust created to hold property acquired outside of marriage (before or after marriage), by inheritance (before or after marriage) or during marriage with separate property funds.
A single woman should create a separate property trust before cohabitation/marriage and fund it with her assets to set up her game plan. This will avoid probate (in the event of death), and clarify and delineate the ownership status and separate property character of her total assets she owned prior to marriage or cohabitation (even if currently she doesn’t have substantial assets – it affects the status of future asset acquisition too). Even if you are not considering cohabitation or marriage at this time, if you are a single woman with assets or on the path to accumulating assets, you should establish a separate property trust.
It is a vehicle for conducting future transactions to acquire additional separate property as well. If you do cohabit or get married at some point, the existence of your separate property trust will allow you to create a prominent line in the sand as to what is your separate property, so it does not get commingled with marital or joint property.
Also, keep in mind that having a separate property trust does not preclude the ability to have a community property trust with a spouse – which would hold any community property acquired by a couple during marriage.
What if we want to live together and not get formally married…
It is quite common for couples to choose to live together today before marriage or have no intention of marriage, often purchasing property and building a financial house together.
In addition to creating a separate property trust, single women who intend to cohabit or are cohabiting, should consider entering into a Cohabitation Agreement to confirm their arrangement with their significant other with respect to their legal rights to individually and jointly acquired property.
For example, a couple may purchase a home together with one party providing the full down-payment. It is important to have clarity regarding the ownership of the house in the event of a break-up to obviate any alleged side-arrangements later. If you don’t have this clearly delineated, the other party may refuse to move out which could create havoc.
The cohabitation agreement can set forth what exactly will occur concerning a division of assets (furniture, real estate, cars, etc.) acquired during the cohabitation which will reduce acrimony and confusion.
The further good news is that the cohabitation agreement can be drafted as a combo cohabitation agreement/prenuptial agreement. Even if you haven’t discussed marriage or have a date set, the cohabitation agreement can have all the provisions that you and your partner agree will take effect when the next step occurs. All the hard work is done before engagement and marriage, and the perfect transition because it converts into the prenuptial agreement and takes away the need to have that conversation immediately before tying the knot.
Nuptials Are Imminent…
You said yes!! The arrangements are now in motion and there is so much to plan and so little time…
Engagement and marriage are significant steps and will change your life emotionally and financially without a doubt. It is a time of joy, love and planning. It is normal and natural to get caught up in the flurry of romantic excitement and not want to discuss money and what happens if it doesn’t work out as we expect. Who in their right mind wants to talk about money and division of property before you even walk down the aisle??
You do!! Our relationship with money is in many ways a reflection of our relationship with ourselves. Whether we like it or not, we all need money to live and if we don’t have control over our financial security, it will have a direct deleterious effect on our happiness and well-being.
Having the pre-marital discussion about finances and property reflects a strong sense of self-esteem, preparation and good sense. Women are often the bedrock of their families, and if we do not prepare for unexpected events, it may prevent you at a later date from taking care of yourself and the ones you love — your children, and subject the family to extreme disruption.
My call to action is for you to have the courage to have these discussions while love is in full force and not to be fearful that you are hurting your partner in some way by initiating this discussion. My goal is for you to enter this new, wonderful stage of your life, on equal footing, eyes wide open, and with the belief that you are the key to your own happiness, both now and in the future. Are you willing to risk future turmoil because you can’t bring yourself to have this conversation and are throwing caution to the wind?
If you have not been cohabiting and/or have no cohabitation agreement, prior to marriage, you and your partner should create a prenuptial agreement.
A prenuptial agreement is an agreement entered into before marriage to document the nature of property acquired before and during marriage, and the division of property and income (including support/alimony) in the unfortunate event of divorce, separation or death. The idea is for separate property to remain separate—to prevent application of the community property or equitable distribution laws to your separate property.
While spouses are always free to enter into a binding agreement regarding their marital property rights during the marriage (via postnuptial agreement), agreements regarding spousal support must be entered into before marriage (via prenuptial agreement) to be enforceable. With more women being the primary breadwinners, women paying spousal support is not an unusual occurrence.
The Tax Cuts and Jobs Act of 2017 (the newly enacted tax law) has increased the “cost” of spousal support by repealing the deduction for alimony paid after 2019.
- Hence, in the event of divorces occurring after 2018, the high-income earning spouse will pay tax on all of their income, even that portion of their income that is paid over to their ex-spouse (their ex-spouse will no longer pay income tax on alimony).
- To limit the potentially devastating effects of this new law, high income earners can instead enter into a prenuptial agreement that limits the amount and duration of spousal support or eliminates the obligation to pay spousal support altogether.
- Alternatively, women who choose to stay at home with their children in lieu of climbing the corporate ladder may wish to enter into a prenuptial agreement setting forth the right to receive a certain amount of spousal support in the event of divorce, as an added layer of security.
Prenuptial agreements are also protective in situations where one spouse has children from a former marriage. Such an agreement helps to ensure that a spouse’s separate property goes to their own children. A prenuptial agreement also provides added protection against separate property claims brought by the children against the trust and/or estate.
Further, prenuptial agreements can be amended later if the landscape changes and both parties agree to change the terms.
Without a prenuptial agreement you subject yourself to the default rules and guidelines of the court, and the judge has discretion and jurisdiction to determine what is community property and separate property. If you have agreed as a couple upfront as to property division and alimony prior to marriage, you have seized control of a potentially volatile situation that could result in a deterioration of lifestyle and a period fraught with financial uncertainty.
Oh no! I don’t have a prenuptial agreement! What can I do now that I am already hitched!
So maybe it didn’t ever occur to you to have a prenuptial agreement and you are already married. You can accomplish almost everything a prenuptial agreement does with a postnuptial agreement with the exception of spousal support terms as discussed previously.
Once you are married, you may think you are too far down the path to bring this up. However, the same uncertainty and possible unfortunate outcomes can still occur if you do not come to an agreement with respect to property division in the unlikely event of an unanticipated break-up. In the interest of protecting your future mental, physical and financial health, a candid conversation when all is copasetic about money and future unlikely occurrences will benefit both parties and can strengthen the relationship through honest, unvarnished discussions.
The recommendation in establishing any of the discussed agreements, is for one party to retain a lawyer to draft up the agreement and submit to the other party for their review with their independent counsel. If both parties have their own separate counsel, it strengthens the agreement and it mitigates one party stating at a later time that they weren’t represented and didn’t understand.
If both parties are in general agreement and there is minimal negotiation, the cost should be minimal, and it will be well worth it in the long run.
If you would like to listen to my interview with Christy Lewis, please click on this link.
Please reach out to me at firstname.lastname@example.org with any feedback or to suggest topics that may be of interest to you. If you would like to learn more about the legal concepts discussed herein, please do not hesitate to contact Christy Lewis, J.D., LL.M at email@example.com.
Kimberlee Davis, J.D., CDFA®
Partner, Managing Director
The Bahnsen Group
Disclaimer: The information provided herein is for informational purposes only, is not intended to convey legal advice, does not constitute legal advice, and is not a substitute for obtaining legal advice and representation from qualified counsel having knowledge of your specific matter.