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Prenuptial Agreements

Wednesday, 28 September 2016

by Erin McAllister, Paralegal

Asking for a prenuptial agreement doesn’t exactly sound like a romantic gesture. After all, couples marry for love, not money, so who needs to work out the financial details of a break-up that the couple hopes will never happen? Everyone does. Couples will accumulate assets during their marriage and even a young couple embarking on their own careers want to make sure that what they acquire during marriage isn’t left to a court to divide among spouses.

Prenuptial agreements are contracts between prospective spouses that foster an environment of trust and confidence between the parties by defining property, support rights, and obligations that will develop during the marriage. At one time prenuptial agreements were looked at as an expression of greed and distrust at a time when affianced couples should otherwise be promising a lifelong bond. As prenuptial agreements have developed over the years and the courts have supported the enforceability of prenuptial agreements, a consensus has developed that enforceable prenuptial agreements may encourage rather than discourage marriage.

Prenuptial agreements frequently modify the way community property laws govern assets and income accumulated or earned during marriage. Typically, absent a prenuptial agreement, all income earned during marriage as a result of labor or efforts of a spouse and assets acquired, other than by gift or inheritance, is community property (owned equally by the spouses). A prenuptial agreement can change the way income is allocated between the spouses by confirming some or all earnings to the producer as separate property.

A prenuptial agreement is a good idea for most couples and is strongly encouraged for a second marriage. It is obvious that parents of children from previous relationships want to ensure the existence of an estate distribution plan to benefit the children of a previous relationship as well as children of the new marriage. A prenuptial agreement can confirm the separate treatment of property that is most appropriately designated for children of a prior relationship. Spouses should be thoughtful and retain experienced counsel before creating estate planning that will affect the entire family.

While death is never a pleasant topic for newly engaged couples to consider, it is a fact of life. The importance for estate planning while drafting a prenuptial agreement is so that decisions about end of life planning also reflect the intentions of the couple. Your prenuptial agreement can enhance and support the estate planning process. Another consideration is what would happen with your assets should one of you die suddenly while you are living separately, but not divorced, versus if one of you dies suddenly while you are happily married. It is not simply for the possibility of divorce, but also for easing the transition for family members after your death.

If either of you have specific family heirlooms or inheritances that you would like to be passed on to other family members instead of your spouse, this can be outlined in your prenuptial agreement.

This information is made available by Spaulding Law for educational purposes only and not to provide legal advice. By using this website, you understand that there is no attorney-client relationship between you and Spaulding Law, unless you have entered into a separate representation agreement. This information should not be used as a substitute for competent legal advice from a licensed professional attorney.

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