Everyone’s heard of a “prenup”…but mentioning it in casual conversation always seems to raise an eyebrow or two. Have you ever wondered why someone who is getting ready to say “I do” would choose to utter that “p” word?
Most people don’t have a good understanding of what a prenuptial agreement is. That may be because there is no “standard” prenuptial agreement. They can do a few different things. So, let me first explain in a very basic sense what a prenuptial agreement is.
A prenuptial agreement (sometimes called an antenuptial agreement) is a legal contract that an engaged couple enters into before they get married. It is both a family and estate planning document. Very simply put, the terms describe each spouse’s legal rights in the event the marriage terminates either by death or by divorce (or dissolution or annulment).
The primary topic addressed in most prenuptial agreement is property rights. As a matter of law, husbands and wives have special property rights in these situations. Upon the death of a spouse, the surviving spouse has certain specific rights to inherit property from the deceased spouse. When a couple divorces, the spouses each have a right to a division of marital property.
Many prenuptial agreements simply reflect the law—that is, reiterate how the law would be applied to the couple’s marital and separate property if something should happen to the marriage. This gives the engaged couple an education on what to expect as their rights in the event the marriage terminates for any reason, and it allows them to plan accordingly.
Prenuptial agreements also can modify the legal rights of each spouse in a way that makes sense to the couple, but which wouldn’t necessarily be the case in the absence of the agreement. For example, a prenuptial agreement can exempt certain personal assets (such as a family business) from being treated as marital property in the event of divorce. Or, the couple can agree to allow each other complete flexibility with their own individual estate plans. This is flexibility can be greatly valued by individuals who wish to leave their estates to their adult children from a previous relationship.
Having a prenuptial agreement prepared doesn’t have to be an uncomfortable process. In fact, here are a few details about the process to help ease your mind about what to expect. With any prenuptial agreement, each future-spouse will provide a written disclosure of all of his or her assets that will be attached to the final agreement. Each future-spouse will have a separate attorney to review the prenuptial agreement and make sure his or her client understands it. Finally, the couple must sign their prenuptial agreement at least a reasonable period of time before the wedding. Getting in touch with your attorneys at least 3 to 6 months before the wedding date is ideal.
Each of these requirements (the disclosure of all assets, representation for the other party, and signing the document well before the wedding date) are essential to ensure the enforceability of the prenuptial agreement.
If you have any questions about a prenuptial agreement or if you would like to discuss whether a prenuptial agreement is right for you and your future spouse, contact Sarah Clay Leyshock or Ashley Shannon Burke at 513-621-2100 to make an appointment.