Meeting with elderly couples who plan to marry is one of the more enjoyable times spent as an elder law attorney.  There is no discussion of the pain that may have been suffered when an earlier spouse died.  There is no discussion of current health care problems.  Financial considerations seem to be put on the back burner.  Sometimes the new spouse will be someone they knew from the past.  It is like the couple has become young again.  Hope springs eternal.  It is my job to explain to the couple, hopefully without dampening their spirits, what their rights are with and without a premarital agreement. 

A premarital agreement often states that each party, even though they are about to be married, would like to control the destiny of their own property which was earned before the marriage and without the help of the other.  There is often a desire to state that in the event of a separation or divorce that the other has no call on the property and that in the event of death, there is a right to pass such property on to their children from a previous marriage. 

Without a premarital agreement a spouse cannot be disinherited.  There is an obvious public policy concern about spouses disinheriting each other and so there are laws that allow a surviving spouse to take a share of the deceased spouse's estate even if they are left nothing.  This share is between 25% and 50% depending upon the circumstances.  A premarital agreement waives the right to this elective share. 

Indiana also has a survivor's allowance provision which says that a surviving spouse automatically is entitled to $25,000 worth of property.  This right can also be waived by the premarital agreement.

There are several things that must be considered in doing these agreements:

1. The assets of each person must be fully disclosed in the agreement.
2. Each side should get their own attorney to look at the agreement, but often the parties use the same attorney and the agreement just states each had the opportunity to hire independent counsel.
3. I think it is important to talk about who is responsible for health care costs because these can be significant.  Medicaid is the program that pays for the majority of nursing home care in Indiana and Medicaid ignores premarital agreements.  This means that even if there is a valid premarital agreement that says each spouse is on their own, Medicaid will still combine their assets for eligibility purposes.
4. The new couple can combine some assets in joint accounts and such accounts will not be bound by the premarital agreement.  The agreement will control only those assets kept in separate name.