Prenuptial Agreements have a negative connotation that makes them difficult to discuss, even in the most appropriate circumstances. As soon as the word ‘prenup’ comes up, a person is likely to feel defensive or unhappy. No one preparing for marriage wants to think about the possibility of it ending, whether by the death of a spouse or by divorce. However, many marriages end, and sometimes it makes sense to prepare for the worst while working toward the best. When a couple marries they are entering a contractual agreement, and prenups are a way to add details to that contract, for the benefit of both spouses.
Some couples legitimately have no need for a prenup. First marriages, when both future spouses are young, usually do not require specific planning for assets or children (because these couples usually have few assets and no children). The couples who do need to consider prenups are those who are getting married for the second (+) time, have children from a previous relationship, have established careers (and therefore significant retirement assets, share in a company, etc.) or have specific assets that they are bringing into the relationship (inheritance, property).
There are several topics to think through when considering a prenuptial agreement. The first thing a couple should do is make an exhaustive list of all assets and liabilities, making sure to be as honest and complete as possible. Next they should talk about how they are going to manage those assets (and debts) both during the marriage and, in the event that the marriage dissolves, after. (What if we use the bride’s money to buy the house that we will share? Is it then the bride’s house? …Or is it 50/50 ownership, with half of the money being a gift to the groom?)
Couples should discuss their views on spending and saving, credit and debt, and who will be expected to contribute in which ways. (Will one spouse stop working to raise the children at home? Who is responsible to make sure the bills get paid? From which account?) These are good conversations to have prior to marriage, whether a prenup ends up being appropriate or not.
Another thing to discuss is whether there are assets that one spouse is bringing into the marriage, but doesn’t want added to the marriage pool. For example, maybe the bride inherited family jewelry and doesn’t want it to be considered a comingled asset after marriage (so that she can pass it down her family line without worrying that she will ‘lose it’ in the event of a divorce).
There are some instructions that will not be honored in a prenup, such as “If I die I want our future children’s maternal grandmother to be awarded custody of the kids.” Or “If I catch my spouse cheating we will get a divorce.” Other instructions are technically valid but trivial (“Future Spouse is required to mow the lawn at least once a week / quit smoking / not gain weight”). Instructions like these can make a prenup lose credibility, and are best to avoid.
The couple should ideally have independent counsel, with both attorneys working on the prenup so that it’s fair to both bride and groom (you cannot have one attorney represent you both). It’s important to have an attorney read over the document before signing, no matter how the document is prepared, to prevent any blatant unfairness or unenforceable clauses. Couples should sign the document in triplicate; one original for each of them and one to be kept in a neutral, safe place. Prenups should be signed as early as possible; a prenup signed the night before the wedding may bring coercion into question later on.
We all know that the divorce rate in the United States is high (although the most recent data puts Russia in the lead for most divorces per capita).1 The percentage of marriages that end in divorce in the US is in the high 40s, close to 50%. More specifically, the divorce rate in America for first marriage is 41%.
The rate for second marriage is 60% and third marriage is 73%.2 Less common is the early and sudden death of a spouse, but this is still a risk that should be recognized. A prenup can be considered an early estate planning document; a placeholder until thorough estate planning documents are written and signed.
Most prenups are written quite cautiously and there are ways to revisit the document later. Sometimes couples choose to add a ‘sunset clause’ to the prenup (wording that states, for example, that the prenup is only valid for up to ten years after the marriage). A will written after the prenup can alter the original agreement, but only in ways that benefit the widow(er). If the will is written to be less generous than the prenup, the prenup takes precedence. Alternatively, if the will is written to be more generous, then the surviving spouse receives a larger portion of the estate than what was agreed upon prior to marriage. A prenup does not have to be set in stone. As a couple grows together their goals may change, and proper estate planning documents can keep up with those changes.
Anyone going into a marriage with existing children, assets or a history of past marriages should consider a prenuptial agreement. Prenups should be considered a part of estate planning, simply giving specific instructions regarding your wants for your family and your financial life in the event of the death of a spouse or the dissolution of your marriage. Prenups have gotten a bad rap, but considering or implementing one should not seem like a dark cloud hanging over an upcoming marriage. Prenups are a tool that can benefit both spouses and their children, as well as a way to make sure that both spouses are starting off the marriage with their expectations communicated and understood.