'I Do,' but First ...
Prenuptial agreements are rarely easy to discuss; That's what makes them so crucial

Elizabeth Seay
The Wall Street Journal, Page R7, © 1998

First, David L'Heureux asked the woman he loved to marry him. Then he popped another question: "Can we get a prenuptial agreement?"

At first, he was a little apprehensive about broaching the subject. "I was concerned, being from the old school, that you don't do those things," says Mr. L'Heureux.

But getting married at 67 years of age is different from when you're young, he decided. Mr. L'Heureux now had five children from his previous two marriages. He also had a lifetime's worth of assets to pass on. That included his Rockville, Md., home, his pension and his investments. It also included his collection of African sculptures and paintings, amassed during 44 years in the Foreign Service; the sprawling electric-train set he had been adding to since 1937; and his Captain Midnight secret-code badges, saved from childhood.

He had battled cancer and undergone a quintuple bypass, and he wanted to make sure there was nothing his survivors might fight over. Given all that, he says, a prenup was "essential." Luckily, he adds, his fiancee was receptive.

Because prenups aren't registered like marriage certificates, it's hard to say precisely how popular they're becoming. But matrimonial attorneys say a growing number of senior citizens are arranging prenups. These people aren't as rich as Donald Trump, but they have more money than younger people, and many have children from previous marriages to protect.

"At one time, the only people that did [prenups] fit the stereotype of the rich old man marrying the fox. That is no longer true at all," says Mike McCurley, president of the American Academy of Matrimonial Lawyers. "More older couples are getting divorced and remarrying, and more of them are demanding security and predictability in the law."

As the twice-divorced Mr. L'Heureux puts it: "It's a lawyer's world."

With so much at stake, it's no wonder. According to the Federal Reserve Board's latest Survey of Consumer Finances, conducted in 1995, households headed by people between 55 and 64 had a median net worth of $110,800. That's the highest of any age group cited in the study.

But who will inherit this wealth? In the absence of a prenup, many states entitle a surviving spouse to as much as one-half of the deceased partner's estate. In divorces, as much as 50% of a person's wealth can go to a spouse. And most senior citizens don't have many years left to earn back wealth lost in a divorce.

The issues marriage raises are so stressful that many senior citizens choose not to remarry at all and simply live together instead. Marriage also worries their children. "A woman's kids aren't going to like the situation if their father paid for the house and it's going to someone who met her when she was 65 years old," says Lilly Singer, coordinator of the bereavement program for Westchester Jewish Community Services in Hartsdale, N.Y.

Mr. L'Heureux's 43-year-old son Peter didn't hesitate to suggest that his father get a prenup. "I actually warned him, and he said it was already being taken care of," the younger Mr. L'Heureux says. He adds that he doesn't count on inheriting family money and doesn't suspect the motives of Verna Murphy, who became Mr. L'Heureux's wife.

"She's a lovely lady and has money of her own," the younger Mr. L'Heureux says. But he has witnessed several family fights over money, among them those prompted by his father's two divorces. "Wills are so precarious," he says. "I thought it was important to protect him and to protect the family."

Prenup terms vary widely among couples. They "can be as narrow as dealing with the stock of a closely held company and as broad as everything they bring to the marriage," says Fred George, an estate-planning lawyer with the Pittsburgh-based law firm of Eckert Seamans.

In drafting theirs, Mr. and Mrs. L'Heureux made a detailed inventory of their assets. What she brought to the relationship would remain hers and go to her heirs; what he brought was his. She sold her house, protecting the proceeds for her family, and moved into his slightly bigger one. They keep track of living expenses and have a joint credit card for things like taking friends out to dinner.

Their agreement is fairly typical, lawyers say. Most couples have to decide whether to own some property jointly and whether to share day-to-day living expenses. Many agreements set out whose home the couple will live in and whether they will file joint tax returns.

Some couples keep their assets completely separate. Marilyn and Dwight Swanson of Beltsville, Md., were 66 and 74, respectively, when they decided to marry two years ago, after meeting in a class called "Dating After 50" at the Holiday Park Senior Center.

Both were widowed, she after 36 years of marriage and he after almost 50. She had one child, and he had four. Mr. Swanson has net assets of $200,000 to $300,000, and an annuity from his years as a meteorologist, climatologist and computer developer for the federal government. She has a pension from her first husband's work, and a Social Security check. "I've seen examples where couples didn't have [prenups], and the children were left with nothing," Mr. Swanson says. "It was grossly unfair."

He sold his house, earmarking most of the proceeds for his children, and moved into her bigger one. They counted up all their bank accounts and stock, as well as household possessions down to his TV and VCR. Now, they keep track of everything they've bought since their marriage, from furniture to a patio they added to the house, and note how much each has paid. If she dies, he can live in her house for five years before it goes to her children.

Some couples also determine who will pay for long-term care, and set up trusts to fund it. "If you conk out on me when you're 62, I don't want to give up my kids' college education to pay" for long-term care, says Mr. McCurley of the American Academy of Matrimonial Lawyers. Others lay out choices of lifestyle and divisions of labor, providing that the couple will winter in Florida, for instance.

George Sirott, 84, of West Palm Beach, Fla., asked his fiancee Norma to sign a prenup that would dissolve after the first year of marriage. "If we didn't get along and separated, I would give her a substantial amount of money and that would be the end of it," he says. But he didn't want to keep her on probation forever. "I wanted her to feel like she was my wife and not a second-class wife," he says. (They got along, and the agreement expired.)

Prenups don't have to be the husband's initiative. "Women should protect themselves, period," says Dolores White, 69, of East North Court, N.Y. Mrs. White arranged a prenup when she married for the third time. She says her second husband repeatedly argued with her about ownership of the house she had brought to that marriage, and this time she wanted financial matters to be clear from the beginning. "You can't have what you didn't earn," she says.

Whoever initiates a prenup, lawyers warn that the agreements can be challenged and overturned. A partner can argue, for example, that he or she signed under duress: Courts have ruled that an agreement first presented the day before the wedding wasn't entered into voluntarily.

To avoid challenges, lawyers advise couples to use separate attorneys when drafting a prenup. They also say couples should catalog their assets and give each other full disclosure, especially on things that are hard to value, like shares in a family business.

The cost of a prenup depends largely on how complicated the agreement is. The Swansons hired two lawyers, billing by the hour. Her lawyer drew up the agreement for $1,575, and his went over it for $1,300. The L'Heureux couple incurred similar costs. Preparing a prenup can be grueling: Mr. L'Heureux says he and his wife were still hammering out theirs the day before the wedding.

To be sure, many senior citizens regard prenups as incompatible with the notion of marriage. "I've always felt that if you can't trust the one you want to marry, what's the sense?" says Eli Koenig, a 78-year-old New Yorker who recently remarried. "At this point in my life, if I'm going to do it, let's really do it."

But the rewards of sitting down to hash out the agreement can go beyond legal security. Says Mary Cadden, a motivational speaker who leads the "Dating After 50" workshops that brought together the Swansons: "It gets you in touch with your beliefs and values."

Not to mention your partner's.