Congratulations on your upcoming wedding! This is an exciting time but it can also come with stress and anxiety about the legal aspects of getting married. While you are planning your wedding and picking the perfect venue, you should also spend time to think about the legal components to your upcoming nuptials! There are many things you should consider before your wedding day to make sure that you are entering into your newly wedded life with peace of mind.
Should I make and/or sign a prenuptial agreement?
One of the most common legal questions when getting married is whether you should I enter into a prenuptial agreement (more commonly asked “should I get a prenup?”). People often think that a prenup is just for very wealthy couples, but there are many tools that a prenup can provide for all couples! A prenup is essentially a contract that you and your future spouse use to make major decisions.
Most commonly, a prenup is designed to anticipate how a separation would be handled. You can customize your prenup to what is most important to you and your spouse, whether its regarding money, debt, family heirlooms, or even who will keep the pets. However, you can also use a prenup to agree upon major decisions during the marriage! For example, you can use the prenup to arrange how you and your spouse will spend and save money while married.
Finally, do not wait until the day before your wedding to reach out to a family law attorney. You should start discussing and drafting the prenup at least a few months before the big day!
You can learn more about prenups here: https://mcilveenfamilylaw.com/caseswehandle/prenuptial-agreements/
I have children from a prior relationship, do I need to do anything about them?
When you are blending families, you should think about what roles each parent or stepparent is going to play with children. Is your spouse planning to become their legal guardian? Is your spouse planning to adopt your children? Is your spouse just a bonus parent without legal rights to the children? You should have these conversations with your spouse, and if appropriate, with the children’s other parent.
If your spouse is planning on becoming their guardian or adopting them, you should consult with a family law attorney to help you navigate the legal process.
You can learn more about stepparent adoption here: https://mcilveenfamilylaw.com/nc-stepparent-adoption/
I currently own property and/or assets, will they belong to my spouse upon marriage?
If you own property separately before the marriage, it should remain your separate property – with some conditions. If you purchase a house and then you and your spouse get married and live in the house and continue making mortgage payments together, then there is a marital portion to the property that your spouse is entitled to. Similarly, if you have $20,000 in a bank account and you move it into a joint bank account, you may have just turned it from separate to marital property. Let’s say you keep it in your own bank account, but you decide to start investing it in the stock market. The distinction of the property depends on the circumstances, and in some circumstances, if you are creating income on the money, you may have engaged in a marital purpose and may have turned the money into marital property.
The next question you might ask is, well how do I keep it separate then? One option is to sign a prenup. A prenup is a contract. Depending on the type of asset, you can do certain things to keep the property separate. To be best prepared, consult with a family law attorney before the wedding.
My parents gifted me a large sum of money or I have a large inheritance, is my spouse entitled to it?
Generally, no, if something is given to you as a gift or part of an inheritance, it remains your separate property. However, if you choose to use the gift for a marital purpose, or put it in a bank account that your spouse is a co-owner, it could be deemed marital. For example, say your parents gift you $10,000. You choose to use that money as a down payment on your new house, that your spouse will be on the deed to. You have now taken the gift from your parents to you and gifted it to your marriage thus turning it into marital property. This means, that if you separate, you probably cannot claim that you should get that gift of $10,000 from your parents out of the marriage.
My spouse and I already own property together before we got married, how does that work?
It is very common nowadays for people to live together, combine finances, and even buy a house before they get married. If you have already comingled your assets, it will be hard to separate what each of you owned as of the date of the marriage. If you contributed 60% to the down payment for the house and want to make sure that you are credited appropriately for that, the best way to address it would be in a prenup. In the prenup you and your spouse can outline exactly who contributed what going into the marriage and how the marital assets should be divided if you separate.
If I die, will my spouse get all of my property? Do we need a will?
The short answer is yes, get a will. If you die without a will and are married, your estate will pass through North Carolina’s intestate succession laws. The transfer of your estate will depend on a few things: whether your parents are still alive, whether you have children, and how much your estate is worth.
As of 2021, If you are married with no children, but your parents are still alive, and your estate is worth less than $50,000 – then your spouse will inherit your entire estate.
If you are married with no children, but your parents are still alive, and your estate is worth more than $50,000 – then your spouse will inherit the first $50,000 of your property. The remaining property will be divided in half between your parents and your spouse.
If you are married with one child – your spouse will receive the first $30,000 of your estate and the remaining property will be divided in half between your spouse and your child.
If you are married with two or more children – your spouse will inherit the first $30,000 of your estate and a third of the remaining estate. The remaining two-thirds left after the spouse’s share will then be divided evenly between the spouse and the number of children.
However, if you don’t want to have your property pass through these provisions, you can do a will that outlines how your estate will be divided. You should talk about this with your spouse and have the documents prepared before the marriage.
Note that if you have a life insurance policy and a retirement account with beneficiaries determined, those accounts would pass to the beneficiary you have designated.
Should I ask my spouse anything about their finances before I get married?
Yes, you should ask about your future spouse’s financial status before the wedding and have an open and honest conversation about all the finances (even after the wedding, continue these conversations). Money is one of, if not the primary, reasons married couples end up separating. Before starting a marriage, you should absolutely discuss finances and know what each of you is getting involved in. Do they have debt? Do they have significant assets you don’t know about? Do you know what their income is? These things could all affect you upon the marriage. If your spouse enters the marriage with substantial debt and chooses to re-finance it during the marriage, you may be obliged to co-sign the consolidation of the debt turning it into a marital debt. There may be tax implications upon marriage if your spouse has significant assets or high income that you were not aware of. Your combined income could put you into a new tax bracket. A prenup can also help you determine who will be responsible for what marital debt, who will be responsible for taxes, and how you will handle your joint financial status.