WHAT IS MARITAL PLANNING?
When used in our practice, the term Marital Planning refers to the planning by couples who are engaged to be married or already married for the distribution of their assets in the event their marriage fails. Unfortunately, the divorce rate in this country is over 50%. While we would like to believe that that people who are getting married or who are already married will make their marriages last, many couples fail to do so. Money and financial issues are the source of considerable conflict in many marriages and a major cause of divorce. If couples discuss their views, habits and expectations with respect to money and finances before marital difficulties begin, they are more likely to agree upon a fair scheme for the distribution of assets than they would once they become adversaries in a divorce action. Marital Planning addresses what assets each party has/had going into the marriage, if and how those assets will be shared or used during the marriage, how appreciation or increases in the value of assets will be treated and how assets will be divided in the event the marriage ends.

SHOULD SAME-SEX COUPLES ENGAGE IN MARITAL PLANNING?
Absolutely! Since New York now recognizes and allows all couples to marry, same-sex couples should engage in marital planning. The issues faced by same-sex and traditional couples are similar. However, since marriage confers both rights and obligations upon partners that may not have existed before marriage, it is important to consider all of the consequences of marriage and to plan accordingly.

IF MY SPOUSE AND I SIGNED A PRE-NUPTIAL AGREEMENT, IS MY SPOUSE ENTITLED TO 1/2 OF MY ASSETS IF WE GET A DIVORCE?
Whether your spouse is entitled to ½ your assets will depend on the language in your pre-nuptial agreement. If what you are referring to as “my assets” were described in the pre-nuptial agreement as separate property belonging solely to you, and if you have not mixed your separate property with shared marital property, it is unlikely that your spouse will be entitled to a share of your assets. This, of course, assumes that the pre-nuptial agreement was properly drafted and signed by both you and your spouse in the presence of a notary public.

WHAT DOES IT MEAN TO WAIVE YOUR RIGHTS IN YOUR SPOUSE’S ESTATE?
When you are married, the law gives you certain rights in your spouse’s estate. For example, if you spouse dies without a will, it is presumed that you will become the administrator of your spouse’s estate and that you are entitled to the lion’s share of the estate assets. If your spouse dies with a will in which you are disinherited, you are still entitled to a certain share of your spouse’s estate. When you waive your rights in your spouse’s estate, you give up any right you may have had to handle the estate or to claim a share of the estate. A waiver must be in writing and must be signed by you in the presence of a notary.