Second marriage estate planning considers issues such as:

• what, if any, assets to own jointly and when
• how to title jointly owned assets
• whether and when to have joint debt
• whether a prenuptial agreement is needed
• whether to purchase a home together and the financial mechanics of this
• how to provide for the spouse in the event of death
• how to care for the spouse in the event of disability
• business succession and ownership
• the likelihood that relationships with family members will change over time
• use of beneficiary designation opportunities
• estate tax planning strategies

Incorrect assumptions lead to unintended consequences.

The couple needs to understand the legal implications of their decisions based on the law of the state where they are domiciled.  Often, there are inaccurate or vague assumptions about the legal effects of the couple’s actions, leading to unintended consequences.  The misinformation may be based on the law of another state, or simply wrong.  This phenomenon is frighteningly common in the estate planning and financial arena.

Right motives do not guarantee a good outcome.

Sometimes there are practical problems created by the best of intentions – such as giving your spouse the right to reside indefinitely in a home intended to be part of your children’s inheritance.    This is almost always a recipe for disaster.   Creative planning can offer solutions.

Differing expectations of the marriage are common.

The couple’s conversations resulting from good premarital counsel frequently reveal differing expectations of the marriage which have been largely unspoken.   In the case of  a serious conflict, it is preferable to discover it prior to the marriage.

The couple’s adult children may feel threatened by the marriage, and having a road map for the couple’s legal and financial dealings can ease tension or uncertainty.

Planning for disability or incapacity.

If the couple stays married long enough, at some point one or both is likely to become mentally or physically incapacitated.  Wise planning for this eventuality is essential to a good outcome.

Should you “vette” your mate?

To what extent should you make inquiry about your soon-to-be spouse?   Should he or she be “vetted” before tying the knot?  I have heard (and perhaps said) that you should get a credit report, a criminal background check, and a medical check before marriage.   While none of these issues necessarily doom the relationship, ideally you should go into the marriage knowing most, if not all, important factual background, health, financial, and legal information about your mate.  Ideally this comes from mutual self-disclosure.  Individuals with considerable wealth occasionally engage consultants to conduct a thorough background investigation.  While there is nothing romantic about a premarital medical examination or prenuptial agreement, in marriage an ounce of prevention really is worth a pound of cure.

South Carolina one-third “elective share” for surviving spouse.

A South Carolina domiciliary has another important issue to consider.  Under South Carolina Code 1976 § 62-2-201, when a person domiciled in South Carolina dies, the surviving spouse has a right to take one-third of the deceased spouse’s probate estate – no matter what the will says and no matter how many children there are.   This is known as an “elective share of surviving spouse.”   If you intend to leave your entire estate to your children from a prior marriage, your newly acquired surviving spouse could thwart this plan by filing an elective share petition after your death.

The South Carolina elective share law says the surviving spouse is entitled to a third of the probate estate.  What about property transferred at death by a will substitute such as a trust, pay-on-death designation, or jointly owned property?  The code would seem to exclude such property from eligibility for calculating elective share.    However, a 1991 South Carolina Supreme Court case found a revocable trust illusory because the settlor retained essentially the same rights in trust assets as he had before the trust was created.  The Court included the trust assets in the estate for purposes of calculating the widow’s one-third elective share.  The settlor had created the trust to leave most of his estate to his daughters from a former marriage, and his plan failed miserably.

Fortunately, there is a solution to this dilemma.  South Carolina law provides for a voluntary waiver of the surviving spouse’s right to an elective share, but it requires fair and reasonable disclosure in writing to the waiving party of the other party’s property and financial obligations.  Each party needs individual legal counsel.  The waiver can take place before or after the marriage, and it can be a whole or partial waiver of the spouse’s right to elective share.

Identify and address your estate planning goals.

These are only a few examples of matters that can arise in second marriage estate planning.   Whether you are contemplating a second marriage or have already remarried, Hindson & Melton LLC can assist you.  We will work in partnership with you to identify and address your estate planning goals.
© Karen S. Hindson, Hindson & Melton LLC     August 5, 2012   

The South Carolina Supreme Court discussed South Carolina prenuptial agreements in the Hardee v. Hardee case, 355 S.C. 382 (2003).

The test for South Carolina prenuptial agreements:

• Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
• Is the agreement unconscionable?
• Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

South Carolina prenuptial agreement invalid in Holler case

The case of Holler v. Holler, 364 S.C. 256 (2005) is an example of a South Carolina prenuptial agreement the Court found invalid and unenforceable.  The family court’s decision was affirmed by the Court of Appeals of South Carolina.   The court decided that the premarital agreement was invalid because it was signed under duress, and also because it was unconscionable.

When the prenuptial agreement was signed, the Ukrainian wife-to-be was pregnant, in the United States, and her visa was about to expire.  She had no means to support herself and no money to retain an attorney or hire a translator.  She did not understand the contents of the agreement even though she attempted to translate it into Russian.  The Husband-to-be told her to sign the agreement if she wanted to be married prior to her visa expiring.   She signed the agreement on November 25th, and the parties married on December 1st, three days before her visa expired.

Duress is a subjective question

Whether or not duress exists depends on the facts of the particular case, including age, sex, and capacity of the party influenced.  It is a subjective test which looks at the individual allegedly influenced — if the victim has a reasonable alternative to succumbing and fails to take advantage of it, there is no duress.   Blejski v. Blejski, 325 S.C. 491 (Ct.App. 1997).

Test for duress in South Carolina agreement

Three things must be shown to prove a South Carolina contract was obtained through duress:

• coercion
• putting a person in such fear that he is bereft of the quality of mind essential to the making of a contract; and
• that the contract was thereby obtained as a rresult of this state of mind.

In re Nightingale’s Estate, 182 S.C. 527, at 547 (1937).

Independent legal advice a significant consideration

The South Carolina court, in invalidating the Holler case prenuptial agreement, noted that one significant consideration in assessing whether a prenuptial agreement was voluntarily and understandingly made is whether a party obtained independent legal advice.

Unconscionability looks to when the contract was entered

The Holler decision says if a contract was unconscionable when it was made, the court may refuse to enforce it.  Like duress, unconscionability is fact specific, and the entire circumstances of the case must be considered.  “Unconscionability is the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them.”  Holler, at page 269.

Call Hindson & Melton LLC for your South Carolina prenuptial agreement

Our law firm has years of experience with prenuptial agreements.  We can help you determine whether a premarital agreement is helpful or important to your situation.  A South Carolina prenuptial agreement can offer important protection for your assets and your future.   Seek experienced legal advice from Hindson & Melton LLC before you enter into a South Carolina prenuptial agreement.
Karen S. Hindson – July 1, 2012

Georgia prenuptial agreements are enforceable, so it is imperative to have experienced legal counsel when you enter a Georgia prenuptial agreement.  Prenuptial agreements are sometimes called premarital agreements or antenuptial agreements, these terms all refer to the same thing.   The terms of your Georgia prenuptial agreement should be negotiated on a case-by-case basis and both sides need qualified attorneys to assist you.   The terms of your prenuptial agreement, as well as the process you follow in entering your prenuptial agreement, really do matter!

• If you are seeking to protect your assets or income, you absolutely want your Georgia prenuptial agreement to be as “bullet proof” as possible.
• If you are marrying someone with substantial assets or income and a prenuptial agreement is a condition of your marriage, you want to make sure that the terms of the Georgia prenuptial agreement are fair to you.

Sometimes both parties want a Georgia prenuptial agreement

Sometimes, both parties wish to enter a premarital  or prenuptial agreement spelling out your up-front understandings about assets and income following the marriage.

• Couples with established careers and accumulated assets.
• Couples where one party has already inherited assets or expects to inherit assets in the future.
• Couples entering second (or third!) marriages, especially if children are involved.

It is wise for such individuals to seek experienced legal counsel prior to the marriage, to explore whether a prenuptial agreement can improve your situation.  There are likely  issues that neither party has considered.  Sometimes, even the conversation about a prenup reveals that the parties are not at all on the same page in their expectations of the marriage.  Not all lawyers will agree or give the same advice on issues surrounding prenuptial agreements.  Seek a second opinion if you (or family members) have concerns or unanswered questions.

Enforceability of Georgia prenuptial agreement – factors

Georgia courts consider three factors in determining whether to enforce a prenuptial agreement:

1 – Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
2 – Is the agreement unconscionable?
3 – Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

At first glance, it might seem as though a significant increase in net worth or income during the marriage might make the prenuptial agreement unenforceable under factor number 3.  However, in late 2011 the Supreme Court of Georgia again ruled a Georgia prenuptial agreement enforceable, saying that the fact that the Husband’s net worth nearly doubled in twenty years was not unforeseeable.    Sides v. Sides, 290 Ga. 68 (Nov 7, 2011).

In the Sides case, Husband had a net worth of $4.2 million at the time of the marriage and Wife was a flight attendant who lived in a small apartment and drove a car leased in her father’s name.  During their almost twenty-year marriage, their net worth grew to about $8 million.  The prenuptial agreement stated that Wife would get much more if they were married more than twenty years, but Husband filed for divorce before the twenty year mark after their child left for college.  The prenuptial agreement was enforced by the Georgia Court, and sixty-two days before their twentieth anniversary, the Wife received her car and $250,000 payable in installments of $25,000 per year for ten years.   Needless to say, if there had been no prenuptial agreement, the Wife likely would have received much more in the divorce.

The Court considered that full financial disclosures were made prior to the parties entering the prenuptial agreement, both parties were represented by counsel, and Wife was well aware of the vast disparity in their incomes at the time she entered the prenuptial agreement.  The Court found that the Wife must have anticipated that Husband’s wealth would continue to grow over the ensuing years, so this was foreseeable.  As a result, there was no change in circumstance which would make the Georgia prenuptial agreement unfair and unenforceable.

Bottom Line – Georgia prenuptial agreements enforced

The bottom line is that Georgia prenuptial agreements are usually enforced if proper procedures are followed.  Contact Hindson & Melton LLC before you marry for advice or representation on your prenuptial agreement.  We can prepare your agreement, assist in negotiations with counsel for the other party, and address your questions, needs and concerns.
Karen S. Hindson - July 1, 2012