When divorcing parents agree that their children should inherit the assets they've accumulated, an unexpected question can arise: what happens if one of them remarries? Protecting a future inheritance is one thing. Attempting to negotiate a former spouse's next marriage is quite another.
A Marriage That Hasn't Happened Yet
One of the more interesting issues I've encountered in divorce negotiations involves couples attempting to establish financial safeguards against a marriage that hasn't happened yet, and may never happen at all.
The issue generally arises when divorcing spouses have accumulated assets during their marriage and share the desire that those assets will eventually pass to their children.
There may be no disagreement whatsoever about that goal. Both parents want their children to inherit what they've worked to build.
The disagreement begins when one spouse questions whether the other will remain committed to that intention after entering a new romantic relationship or marriage.
The Fear of Future Influence
I've seen this concern arise when one spouse believes the other may be particularly susceptible to the influence of a new romantic partner.
The worry is that a future husband or wife could persuade their former spouse to change an estate plan, transfer ownership of property, or otherwise redirect assets that both parents had intended for their children.
This is almost always a trust issue, where one parent questions whether the other will have the independence and resolve to honor their intentions for the children in the face of a future partner's competing interests.
This doesn't necessarily mean either parent doubts the other's love for their children. What they doubt is whether that parent will maintain the same financial follow-through when another person becomes an important part of their life.
And so the divorce negotiations begin reaching into the future in a very personal way.
What happens if you remarry?
What happens if your new spouse wants an interest in the house?
What happens if you die before they do?
Will the children still inherit what we intended them to receive?
"I don't want some other person getting what is meant for our children."
These are legitimate questions and concerns. But they can become difficult to resolve when the answers depend on decisions that have not yet been made, involving people who may not even have entered the picture.
The Prenuptial Agreement That Doesn't Exist
One solution frequently proposed during these negotiations is a requirement that either spouse enter into a prenuptial agreement before remarrying.
The intention is to prevent a future husband or wife from acquiring rights to assets that the divorcing parents want preserved for their children.
On the surface, the request can sound reasonable. If both parents agree that their children should inherit these assets, why not require an agreement protecting them?
The difficulty is that a prenuptial agreement requires the participation and consent of a future spouse who is not a party to the current divorce.
Neither parent can guarantee that a future partner will accept those terms.
Protecting the Assets Without Negotiating the Next Marriage
A prenuptial agreement is not the only strategy worth considering.
An irrevocable trust established before a subsequent marriage may offer another means of preserving designated assets for the children.
When properly structured and funded, with the assets maintained separately, such a trust may help protect those assets from certain claims arising in a future marriage or divorce.
There are important distinctions here. Protecting property from division in a subsequent divorce is not necessarily the same as ensuring that property passes to the children upon death.
The nature of the assets, the terms of a trust, the rights retained by the person establishing it, and the laws governing a future marriage all matter.
These are questions that require careful attention from qualified estate-planning and family-law attorneys.
But the larger point is that parents may have ways to pursue their shared inheritance goals without making the financial terms of an unknown future marriage the centerpiece of their current divorce negotiations.
Planning for the Children, Not the Next Spouse
Divorce requires couples to make decisions about the assets they own today. When children are involved, those decisions may also reflect what the parents hope to leave behind.
Wanting to preserve an inheritance for the children is understandable. So is the concern that circumstances, relationships, and intentions may change over time.
But there is a difference between establishing protections for an intended inheritance and attempting to govern a former spouse's future marriage.
One is an estate-planning objective. The other can become an effort to retain influence over a life from which the marriage is supposed to be separating.
I've found that these negotiations can become especially difficult precisely because the parents agree on the goal.
Their disagreement is not about whether the children should receive the assets. It is about whether they trust one another to make that happen—and whether either spouse has the ethical right to demand control over the other's future financial decisions.
It's a uniquely gray area in divorce negotiations.
Sometimes the challenge of divorce is recognizing that a shared intention does not necessarily come with a shared willingness to relinquish control over how that intention is fulfilled.
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