There are two types of Marital Agreements: (1) Prenuptial Agreements (or “prenups,” as they’re commonly referred to) and (2) Postnuptial Agreements.
Many people associate Prenuptial Agreements with divorce, but this is not always the case. Prenuptial Agreements are invaluable tools in many situations, not just in the event of divorce. A well-drafted Prenuptial Agreement addresses not only how property would be divided in the event of a divorce, but also how property would be divided upon a person’s death. A properly drafted Prenuptial Agreement should address property division and alimony in the event of divorce as well as inheritance in the event of death. While a Prenuptial Agreement is not a Will and is not a substitute for a Will, it can be used in conjunction with a Will to guarantee that certain of your desires are met upon your death. In some cases, a Prenuptial Agreement coupled with a Will is the only way to guarantee your desires will be met. A Will, by itself, is usually not sufficient to guarantee this.
For example, you may have received (or anticipate receiving) an inheritance and want to ensure you keep your inheritance as your separate property in the event of your divorce or that your inheritance is passed on to your children (and not to your husband or wife’s future wife or husband or children) in the event of your death. Did you know that your spouse is entitled to a certain percentage of your estate (including your inheritance and all of the property you acquired prior to your marriage) in the event of your death, regardless of whether you left him or her anything in your Will. The only way to get around this entitlement is with a Prenuptial Agreement. You may also have children from a previous relationship and want to guarantee that if you leave everything to your spouse at your death, that your spouse does later not disinherit your children from that previous relationship. Situations like these are exactly what Prenuptial Agreements are great for.
You may be asking what a Postnuptial Agreement is. A Prenuptial Agreement and a Postnuptial Agreement accomplish the same results, only a Prenuptial Agreement is signed before you are married, while a Postnuptial Agreement is signed after you are married. So, just because you did not have a Prenuptial Agreement before you were married does not mean that we cannot address these issues after your marriage. We often include Postnuptial Agreements as part of our estate plans.
The process of entering into a Marital Agreement is equally as important as what the Marital Agreement itself says. If the Marital Agreement is not properly entered into, your spouse may later be able to challenge the Marital Agreement. A Marital Agreement is only valid if it is entered into freely, knowledgeably (this means full disclosure to your spouse of all of your assets and income, and vice versa), and without duress or undue influence of either spouse. If successfully challenged, it would be as if the Marital Agreement never existed. We have more than 30 years of combined experiencing drafting and reviewing Marital Agreements, and we make sure that when we are involved in the process of developing your Marital Agreement, it is done properly, so as to minimize the risk that your spouse may later successfully challenge the agreement.
We would welcome you to to schedule a free consultation to discuss whether a Marital Agreement is right for you and your family.