Understanding Prenuptial Agreements (AKA, Pre-Nup)


Understanding Prenuptial Agreements

What is a Pre-Nup?

Definition: prenuptial agreement, (premarital agreement), prenuptial agreements, prenup:

A prenuptial agreement (also known as an antenuptial agreement, premarital agreement or prenup) is a signed and notarized agreement made by a couple before marriage that concerns various financial issues such as the control and possession of property and other assets taken into the marriage and later obtained during the marriage either individually or jointly, as well as the couple’s future earnings, and how such property or assets will be distributed in the event of divorce or death.

Who Would Benefit From One?

Although many couples might not find signing documents such as a prenuptial agreement to be very romantic, if either you and/or your fiancé have been divorced , you probably already know how valuable a prenup can be.

Couples with significant assets or those with children should consider having an attorney draft a prenuptial agreement or, at the least, download prenuptial agreement forms to create your own prenup or get examples of how prenups should look or be worded, and maybe save yourself some money too.

Couples without a prenup will have their assets distributed for them by the state if the marriage ends and they disagree about who should get what. Without this important prenuptial agreement document you are allowing your financial future to be determined by the state.

Discuss the prenup possibilities. Believe it or not, having this prenup discussion might actually help build a mutual trust and relieve some anxiety about getting married. Communication is key in any relationship, so begin to strengthen this skill now by talking about the hard stuff.

How Do Pre-Nups Work?

A prenup can help protect funds either spouse may have saved for a child’s college education or their own retirement, prior to the marriage. Having this prenuptial agreement drawn up before the wedding can save you time, emotional trauma and of course, money if the marriage does happen to fail.

Sit down with your partner and make a list of all assets. You will be best served by contacting a prenup attorney in your state who specializes in divorce and remarriage. Each partner should hire their own attorney. This helps avoid any charges of fraud if the marriage ends in divorce.

If either partner has children from a previous marriage, clarify their property rights and how they’ll be supported, both during the marriage and in case of death or divorce. The attorneys co-write the prenuptial agreement with their clients’ best interests in mind. Use any combination of prenuptial agreements, living trusts, custodial accounts and wills.

The prenuptial agreement should be signed in triplicate, each partner getting an original copy, and a third copy kept with an independent lawyer, CPA or in a bank’s safety deposit box. A prenuptial agreement can offer much needed peace of mind and security.

Please be advised that consulting an attorney in your state, even after reading and/or completing any free or purchased prenuptial agreement templates or forms and/or books is highly recommended. Each partner should obtain and hire their own attorney for personal representation.

Prenuptial Agreement Checklist

  • Prepare a prenuptial agreement. Hire an attorney or download prenup forms online.
  • Both partners should disclose all assets.
  • Write new wills or update existing wills.
  • Update and/or purchase insurance policies.
  • Decide how to hold title to property(s).

What Can And Can’t Be In A Prenuptial Agreement?

Generally, a marriage contract can deal with the following:

  • Division of property on separation
  • Ownership of property (what is owned jointly and what is owned separately)
  • Inheritance of property
  • Spousal support obligations
  • The right to direct the education and moral training of any children
  • Cannot deal with custody of or access to children from a previous marriage or relationship
  • Cannot deal with child support issues
  • In a marriage contract, the right to remain in the matrimonial home cannot be included
  • In a marriage contract, the right to sell or transfer the matrimonial home cannot be included

There are a number of prenup limitations to marriage contracts or cohabitation agreements.

Other Important Legal Tools

Premarital agreements are not the only way to ensure that your property is distributed according to your wishes. Revising existing wills and trusts or creating new ones can also accomplish this. You’ll also want to review beneficiary designations on retirement plans and life insurance policies.

Brides – if you’re changing your name, don’t forget to change your name on all legal documents. Download a name change form to streamline that process and to get a list of the typical documents that need to be changed. Just make sure all your financial and legal papers are up to date and consistent with one another. Otherwise, your former spouse could end up with an unintended bequest or your assets could go to your new spouse and your kids could wind up with nothing.

The bottom line: When you’re planning your wedding, assemble a team of experts to help. But don’t stop with the caterer and photographer. Consult your lawyer, financial planner and life insurance agent on how to title your property, hold your money and pass on your wealth before you tie the knot. if you’re living in NY, PA or CT contact this Elder Law Attorney for professional wills, trusts and prenup agreement preparation.

More information on prenuptial agreements:

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