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Q&A: Do I need a prenuptial agreement?

 I'm getting remarried after the death of my husband of 30 years. We had three children who are married with children of their own. My husband-to-be and I are going to be living in my house, and I want to make sure that he gets to live in the house if I die first. I also want to make sure that my children -- and not my second husband's children -- get the assets from the house after he dies. How do I legally ensure that I all my wishes will be followed?

 “There is not one iota of romance involved in a prenuptial agreement, but it’s always advisable in second marriages, particularly where the new spouse has his or her own children,” says Enza Cammarasana, a real estate lawyer in Northport. “With a prenuptial agreement, the second husband will waive any interest in the wife's house. The wife can then execute a will leaving her house to her children, but with a reservation of a 'life estate' to the new husband."

A life estate will give the husband the right to reside in the home until his death. After his death, the property will go to her children as required by her will, explains Cammarasana.

Another way to handle this would be to deed the property to the children prior to the marriage and reserve a life estate to both the husband and the wife, suggests Cammarasana.

“Without a prenuptial agreement in place, the husband is entitled to a statutory 'elective share' of the wife's estate," says Cammarasana. “This statute prevents a person from disinheriting his or her spouse, and allows the spouse an elective share in the amount of $50,000 or one-third of the net estate, whichever is greater.” 

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