Do we want to make medical decision for each other?
Often when one spouse become incapacitated, the other is allowed to make medical decisions for them. In fact, one of the reasons couples marry is for the privilege of visiting each other in the hospital and making medical decisions for each other.
However, sometimes, this responsibility is more than a spouse can handle. Some individuals struggle with indecisiveness. Others, find making medical decisions for their spouse too emotionally difficult. Then there are couples who do not see eye to eye on what medical care should be provided.
If that is the case in your relationship, then both of you might want to consider getting a health care directive. In a health care directive, you can name anyone, including your spouse, to make medical decisions for you in case you are in a coma or incapacitated in any other way. You can also include instructions on what you would like for medical care, thus ensuring that your wishes are fulfilled and relieving the burden of making these big decisions for your spouse or anyone you name as a health care agent.
Do we want to be able to leave an inheritance to whomever we wish without worrying about the elective share rule?
This questions is particularly important for couples who have children from prior relationships.
In Minnesota, when one spouse dies, the other has a right to an elective share of the first spouse’s inheritance. This means that even if spouse A leaves most of her estate to her children from a prior relationship, spouse B can choose to take a percentage of that inheritance and keep it for herself instead of sharing it with A’s children like A wanted.
For some couples, especially when they only have joint children, that is not a problem. However, if both of you would like to be able to leave your inheritance to whomever you wish without worrying that the other may take an elective share, then you might want to consider signing a prenup that waives the right to an elective share.
Do we want to make a joint retirement and savings plan?
It is never too early to prepare for your old age. Some couples prefer to make individual retirement plans; others, a joint plan. Deciding how, when, and with whom you would like to retire will drive the decisions you make as a couple during your marriage, including decisions about children, vacation, job opportunities and more.
Whether you decide to retire alone or as a couple, you might want to consider speaking with a financial representative to understand your options and make a plan.
Do we want to make our own rules or be stuck with default court rules in the unlikely event of a divorce?
Family court can be harsh and unforgiving. While the rules are meant to create a fair and just result, couples often feel that their divorce was neither fair nor just. Because the divorce process is adversarial in nature, often both spouses walk away feeling unsatisfied, and sometimes even cheated.
Thankfully, you don’t need to accept the default court rules and have a traditional adversary divorce. If you and your partner would prefer to divorce on your terms and by your rules, then you might want to consider signing a prenup that details whether and how much alimony one of you will pay, how property will be divided, and who will be responsible for different debt.
The only limitation of a prenup is that you cannot make decisions regarding custody or child support, and will need to address that before a Judge. However, you can still agree to mediate these issues or to decide them through a collaborative divorce process; thereby, reducing the odds of finding yourself in a courtroom trench war.
Do we want to be able to make financial and legal decisions for each other?
Contrary to popular belief, one spouse cannot make financial or legal decisions for the other by virtue of being married. This may seem irrelevant now, but if a situation arises where one spouse is unavailable, do you want the other spouse to step in and make the final decision.
For example, spouse A gets in a bad car accident and is in a coma for the foreseeable future with hopes of recovery. The medical bills become so much that spouse B needs to sell the house to pay the bills, but because spouse A is on the deed, spouse B cannot sell without spouse A’s signature. Spouse B would need to go to court to become spouse A’s guardian in order to the sell the house. The court may grant the request or decide that another person should be the guardian, further complicating the situation.
If you and your partner trust each other and want to avoid a scenario like the one described above, then you might consider executing a powers of attorney naming the other as an attorney-in-fact.
If you and your partner have discussed these questions and want to set up a health care directive, power of attorney, or get a prenuptial agreement, let us know. We'd be happy to help at MDC Family Law!