Love and Money

Remarrying? Shower kids with love, and a good prenup

The comedian Robin Williams hadn't been deceased for long when a fight erupted over some of his belongings. Williams' third wife and his three children from a previous marriage landed in court with a dispute over personal items, including Williams' watches.

Williams' case isn't unusual, though.

Robin Williams with wife Susan, left, and daughter Zelda Williams in 2011.
Jeffrey Mayer | WireImage | Getty Images

When assets are being passed on to children from a prior marriage, trouble can quickly ensue. Having a clear will and a sound trust can help ease tensions. But experts are advising people who remarry to have even stronger asset defenses—prenups and even postnups that are highly detailed and clearly laid out. The message from the experts is simple: You can never have too many documents backing up your intentions.

"The mess comes when you don't have proper estate planning," said Robert Nachshin, a family law attorney based in Los Angeles. An important tool in that toolbox is a prenup, which spells out how assets should be split up if the marriage fails or a spouse dies. Nachshin said that a spouse who wants to protect assets in a second marriage should have both trusts and a prenup.

Lots of people think that prenups are toilet paper. But everyone who gets married twice is sure to have one.
Bob Nachshin
a Los Angeles-based family law attorney

"They're another layer of protection that supplement the trust," said Michael Gilden, a partner at Fort Lauderdale, Florida-based Kopelowitz Ostrow, adding that prenups forged later in life are particularly wise to protect kids from previous marriages.

One of the best features of a prenup is that it can protect nearly every kind of asset an individual may want to pass along, including art collections, cash and even family businesses. Without a prenup, it is easier for a spouse to claim parts of an estate if you die, based on state laws.

"Lots of people think that prenups are toilet paper," Nachshin said. "But everyone who gets married twice is sure to have one."

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But the prenup needs to be airtight—meaning highly detailed—to avoid legal issues. Williams had well-laid-out estate plans when he died, including a prenup and a trust for the kids. However, some personal items were left out of the documents, inflaming the current dispute.

Documenting every asset is necessary, said Lisa Decker, a certified divorce financial analyst and CEO of Divorce Money Matters. As an example, lists of paintings owned before a second marriage can be kept in multiple places, so that you can prove your intention. "Keep records of separate property," Decker said. "The more detail, the better."

Once a prenup is penned, it's nearly unbreakable. "Most prenups and trusts are accepted by the courts," Nachshin said, adding that he has personally seen hundreds of prenups disputed in court without success.

A guide for the prenup-perplexed

Sticking to a shortlist of prenup guidelines strengthens your case. Here are six ground rules:

1. Both spouses need to fully understand what they're entering when signing a prenup.

"They need to have provided all kinds of financial records," Gilden said. "And they should be represented by attorneys. You can't be open enough about the process."

2. Prenups should be negotiated before planning the wedding.

"Once you plan the wedding, you want to have fun," Nachshin said. One common mistake is signing the prenup the day of the wedding, he said, which is what sports star Barry Bonds did, which led to a case that ultimately had to be settled by the California Supreme Court.

3. Delaying getting a prenup means you'll have to opt for a postnup after your wedding.

This move gives you less leverage with your spouse, since he or she has fewer incentives to sign a postnup, Gilden said. And if your future spouse won't sign a prenup, walk away, he advised.

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4. Postnups are still better than nothing.

If the postnup is carefully negotiated and there is full disclosure, the court will probably uphold it against challenges. Courts are upholding postnups more frequently now than they used to uphold them, Nachshin said.

5. After you're married, be careful not to commingle all assets.

The reason: The source of funds, such as joint or separate accounts, used to buy something determines its ownership. "Property ownership in a second marriage should be consistent with the prenup," Nachshin said. "And assets like cash and stocks shouldn't be commingled."

6. Appoint an arbiter to make decisions about gray areas, such as possessions.

John Olivieri, a partner at White and Case in New York City, said an arbiter can serve as the final line of defense to make sure your kids are protected and help avoid conflicts. "The more communication, the less misunderstanding," Olivieri said. He also advocates holding family meetings about inheritance intentions.

Following these guidelines can help avoid costly court battles.