written by Kenney Hegland

“ Second marriages represent the triumph of hope over experience.”
Samuel Johnson

If it weren’t for the triumph of hope over experience us lawyers wouldn’t have much to do.

You’ll need a new will, probably a pre-nupt, and, most tricky of all, you’ll have to talk to your kids. Do you want your new spouse to inherit all of your property? Perhaps, given his or her financial situation , you may want to bypass your new spouse and leave everything to your children. If you do not rewrite your Will, things will be messy when you die.

There is a special problem if both of you have children from prior marriages. You will probably want to provide for your new spouse after your death, but at the time of his or her death, you would to see the remainder of your estate go to your kids. You both agree and draft new Wills, leaving everything to one another, remainder divided among the children. You die first. How can you be sure your new spouse will keep his or her end of the bargain on not write a new will? Betrayal! Shakespearean tragedy!

Double, double, toil and trouble;
Fire, burn; and caldron, bubble.
Eye of newt, and toe of frog,
Wool of bat, and tongue of dog,
Tear my Will, a thousand pieces,
I leave it all to my portly nieces!

A living trust is a good solution. All your property goes in the trust for your joint use; when one dies, the trust becomes irrevocable, with the income going to support the survivor and then, at the death of the survivor, the remainder going to the kids. But there are other devices to accomplish this goal and trusts can be tricky things. Who will be the trustee? To what degree and for what reasons can the corpus of the trust be invaded and thus reduce the amount the children will ultimately get. For medical expenses for sure but maybe not for lavish trips to Rio (unless you are an incredibility forgiving spouse). Given the complexity of Living Trusts, if you want a free donut, go to a Living Trust Seminar, if you want something that actually works, go to a lawyer.

Rewriting your will every five years or so is a good idea in any event: things change – “You mean I was leaving money to that worthless bum?” You will need to look at your other legal documents, perhaps changing who is covered on your health insurance , or who is the beneficiary on your IRA. Do joint owners of saving accounts or real property need to be changed? Notify Social Security of your marriage.

A cartoon shows two young boys standing next to a swimming hole. A rope tied to a tree limb supported a tire swing. The rope is broken. The tire floats in the water. One boy says: “I’ll get another tire, you go tell Tommie’s mother.”

The hardest part about prenuptial agreements is broaching the subject. Blame me.

A “prenuptial” is simply a written agreement between the happy couple (while they still are). It can cover such things as:

1. Who is...

written by Jim Duzak

I recently met a woman (“Nan”) who had a sad story to tell. The man she had been living with for fifteen years (“Karl”) suffered a massive stroke , and died in the hospital two weeks later. He was 64.

Any untimely death is sad enough, but the saddest part of Nan’s story was what happened after Karl’s stroke. Karl’s adult daughter (“Monica”), who had long been estranged from Karl and who blamed Nan for causing the estrangement, arrived on the scene and immediately took charge. As his closest blood relative, she insisted on making all decisions related to his medical care. Beyond that, she convinced the hospital administration that Nan was unstable and potentially disruptive, and she succeeded in having Nan barred from visiting Karl in his hospital room. Nan never saw Karl alive again.

a lot of Boomer couples who had been through unhappy marriages in their earlier years, Nan and Karl were comfortable with the idea of living together without being married. They felt that marriage puts a lot of artificial pressure on people, kills the romance, and isn’t necessary if there are no little kids in the household. I’m not going to try to change peoples’ minds if they really don’t want to get married, but I’m urging those who choose to live together on a long-term basis to anticipate the problems that can arise when the legal benefits of marriage don’t apply.

Unless the cohabiting couple lives in one of the very few states that recognize common-law marriages, they lack the rights that husbands and wives have, including the right to be the presumed decision-maker in the event of their spouse’s serious illness or hospitalization. Harsh as it may sound, from a legal perspective Nan was nothing to Karl. Even though Monica had barely communicated with Karl in the years prior to his stroke, her status as daughter trumped Nan’s status as live-in girlfriend, to devastating effect.

Actually, Nan and Karl could have remained unmarried but still given each other authority to make medical decisions in an emergency, by executing a “health care proxy” (which is sometimes referred to as a “medical power of attorney”).

The specific language required in health care proxies can vary from state to state, but in general they allow someone (the “principal”) to designate a particular person (the “agent”) to act in his or her behalf on medical matters if the principal is incapacitated. In general, the principal can appoint just about anyone to serve as agent; it does not have to be a spouse or a blood relative. Naturally, the principal has to be of sound mind when executing the proxy, in much the same way as if he or she were executing a will.

Perhaps because I’ve seen too many botched-up do-it-yourself jobs over the years, I don’t recommend that people try to write their own proxy forms. Nor do I recommend using forms downloaded from the Internet, which could be out of date or not in compliance with the statutes of the relevant state. Do...