Marriage Law: Questions to Ask Before Getting Married

What questions should you ask before you get married? Does my fiancé like dogs? Does my fiancé replace the top of the toothpaste tube? Does he or she snore? These are important, but they’re not the most important when it comes to marriage law.

Last Saturday I was blessed to officiate my only daughter’s wedding.  It was a happy festive event with all the usual celebrations associated with two young people who have never been married. 

There is a line in the old Anglican marriage ceremony about not entering marriage “unadvisedly or lightly.”  The context of that phrase concerns religious issues more than legal issues, but it is an important legal question, too.  I am in a unique position in that I serve two roles in my community, one as a local church pastor, another as an estate and elder law attorney.

I can tell you from experience, as age increases, no matter whether you have been married before or not, the need for good advice increases exponentially when it comes to planning for the marriage from a legal standpoint.  I will leave the religious side out of this discussion, although it’s no less important.

There are several questions you should ask and get advice on before you marry, a few are suggested below:

Property rights on pre-marital property

  • What happens when I put my new spouse’s name on my real property?
  • What happens when I don’t?
  • Whose home will you or your new spouse live in?
  • How will this be handled if you are the first to die and it is legally your house?
  • How will it be handled if you are the second to die and it is not legally your house?
  • Do you really want to trust adult step-children to protect your right to live somewhere?
  • How can the right to live somewhere that is not your property be secured and protected?
  • Is your pre-marital retirement account 100% yours if you get married?
  • How do you protect your retirement accounts for your named beneficiaries or children?
  • Is it possible to split beneficiary designations on retirement accounts?  How?
  • Can you give your new spouse the income from your retirement account but keep the principal for your children?
  • How can you benefit your new spouse with your retirement accounts without risking your new spouse changing the beneficiary designations?
  • What happens to the furniture in your house that belonged to your deceased spouse?
  • Are you really going to depend on verbal agreements with a deceased person to protect you in all these matters?
  • Who will hold your property Power of Attorney, the new spouse or an adult child?

What happens to pension income according to marriage law in Arkansas?

  • Will the new marriage kill a currently paid pension to a surviving spouse?
  • Who is going to be the beneficiary of your pension, new spouse or children?
  • Will you get any of your new spouse’s pension upon their death?  How?
  • How will the marriage affect your social security benefits?
  • Will the marriage kill your right to take SS benefits from a from a previous spouse?
  • What will make you happier, income or companionship? You could have both.
  • How does an annuity contract which has been turned into a stream of income effect long term care planning?
  • How does joint income affect long-term-care (Nursing Home) planning?
  • How should the beneficiary designations on our annuity contracts be designated to protect both parties in the new marriage?

First Death Issues of the New Marriage

  • Should I use a Will, Trust, or Legal Title for my estate planning?
  • Your spouse can take against a Will in Arkansas.  This may significantly lessen what you thought your children would receive.
  • Did you know gifting your estate prior to death may in fact make Uncle Sam the majority heir by way of Capital Gains Tax?
  • The best way to get a pre-nuptial without killing the romance?

Most of the previous listed difficulties can be addressed with a well-drafted prenuptial agreement.  Below is one that no prenuptial can fix:

Long Term Care Planning

  • How will you pay the nursing home when you or your new spouse is institutionalized?
  • Did you know your pre-nuptial is meaningless to the state concerning qualification for Medicaid or nursing home benefits?
  • Did you know your assets are joint assets for long-term care planning?
  • How do Veteran’s Affairs Benefits fit in?

I didn’t get into the issues of family dynamics such as step-children and sharing time with people who are not your family, all of which you will have to learn how to handle with lots of patience and wisdom.

But I have made my point:  Getting married without advice is not wise at any age.