Do You Need a Prenuptial Agreement if You Have a Living Trust

[intluser]

My question involves marriage law for the State of: NY

Okay, so here's what I am wrestling with. I am in my early 30's and the woman I am engaged to is in her mid-30's. This would be my first (and hopefully only) marriage. This is her second. I own a home, stocks, bonds, etc. She, well, has no debt. She is coming to move in with me and we'll live our lives and eventually kids' lives out of my home. My family, friends, associates all recommend strongly in setting up a pre-nup. While, I really do not want to, as it is something that can come across awkward and untrusting, so I have, for now not broached the subject with my future wife. I have, however, transferred all my ownership in my company and home into my living revocable trust in order to shield them from an unlikely, but I guess possible divorce in the future. I have read online that a living revocable trust, as long as it is executed BEFORE the marriage, is actually stronger than a prenup. My net worth, is a few million. Her's, fiscally speaking, is whatever is in her retirement account.

How should I proceed? Am I safe with the living revocable trust? Or is it a necessity for a prenup too?

Thank you for your time and counsel.

[intluser]

Thank you for your post and comments. I do appreciate them! A lawyer did draft and setup the living revocable trust in means to protect my assets in any type of litigation; let it be business or personal. It was signed and notorized and is filed with his office. Myself and my mother also have an original copy. I agree with trust being very important. However, in these days and times, it never hurts to be safe than sorry. Hence the reason why I opted for the living revocable trust. As, it will protect my assets that I've spent over a decade building; without having to have this conversation with my future spouse. Money changes things, so I'd rather not have to go through that conversation if I do not need too. From what I read, many lawyers have switched to living revocable trusts over pre-nups, as there is little than can be done to break a trust; aside from fraud. Whereas, a prenup, can be dissected to find a loop-hole in order to get it invalidated. Whereas, a living revocable trust does not have this issue.

[intluser]

Would anyone else be able to chime in?

[Michael44]

Would anyone else be able to chime in?

Why not wait another 3-4 years until the sexual blinders are off to make sure that you really want to get married?

If you really want to protect your assets, think about the fact that marriage is very powerful and sometimes trumps any pre-nuptial agreement or other mechanism of protecting assets.

I have just shaken my head and thought "why do men get married" at some of the stories I hear. So why not wait a few years? Is it that urgent?

And if it IS that urgent, I would really be interested in why it is that urgent. I have asked that question a number of times before, and men never answer me. So I would really appreciate a post from you.

[intluser]

We're already engaged. Not sure she'll wait 3 to 4 years.

[Dogmatique]

If she won't wait.....

...well, that might indicate something.

Then again, in the minds of many women, if you're engaged and don't "do the deed" within a year or so there's a problem (reason). You lack commitment.

Now, whether that is accurate for your situation, we cannot know.

Me? Meh. A 10 year engagement = not acceptable. But a couple of years? Yeap, I can see that as being a smart move.

Btw - did someone respond and delete their post? OP seems to be answering a post that's no longer there...

[intluser]

We're putting it off til middle of 2013, not even discussing it right now.

[Michael44]

We're already engaged. Not sure she'll wait 3 to 4 years.

I hate to sound cynical, but ... If you've got enough money, she'll wait (despite any appearances to the contrary or any pressure that's put on you).

But if she already starts giving you ultimatums, do you REALLY want to marry that?

[intluser]

She's never placed any ultimatums on me. The thread was only started for the question on will the living revocable trust protect me as well if not better than a prenup. That is all I am asking.

[Michael44]

Both provide protection, both can be broken or pierced. Prenuptial agreements are usually OK IF you make sure that she has a lawyer herself, that she fully understands what she is signing and there is evidence of it, that the terms are not "unfair" (slippery term), that there are no arrangements that impact third parties (like kids) and that you keep the agreement updated throughout the marriage as events change. A trust shows that you had assets before the marriage and that you are specifically keeping them separate (DON'T commingle them with marital assets). But no one cares if you use the assets in the trust or other assets to satisfy a divorce settlement - you are going to pay the divorce settlement (which could be massive without a prenuptial agreement if you have high earnings in the marriage, for instance).

If you want a fine-tuned comparison, you should first think about the bigger issue: Family laws can be changed at any time. That may throw your calculations way out of whack. As an example, there are some people who married in the 1960s thinking that they would never get divorced if they behaved themselves. Then along came no-fault divorce. Surprise, the conditions have changed. Your alimony payments could be high enough (maybe with less income on your part down the road) that you have to tap into that money anyway - on top of a settlement - to give to her. Or spend some time in jail for contempt.

Sometimes people get Alzheimer's disease. At the point where they are still fairly rational, but not always there, they can be easily manipulated, but still be regarded as competent. That's the "sweet spot" where unscrupulous spouses (we're talking second spouses and with kids from the first marriage who were promised the money) simply take it.

Marriage is very powerful - and that's the point I'm trying to get across. The second point is that there is a phase in the first 3 or 4 years in which a kind of sexual blindness occurs. Just my opinion, and take it for what it's worth.