Engaged couples often go to great lengths to personalize their wedding. From monogrammed favors to a choreographed first dance, weddings express the unique qualities of the pair at their center. But before exchanging “I dos,” many couples are adding another item to their pre-wedding planning: executing a prenuptial agreement.1 In fact, a recent study found that among married or engaged individuals between the ages of 18 and 34, 40% of them had signed a so-called “prenup.”2 In doing so, they’ve customized just one more aspect of their union—their financial relationship.
Create a Flexible Foundation
A prenuptial agreement is a written agreement signed by an engaged couple before their marriage to control the legal rights and obligations arising from their legal union. While commonly thought to address only the financial consequences of a divorce or the death of one spouse, a prenuptial agreement may extend to a variety of financial matters based on the couple’s needs, concerns, and goals for the future.3 For example, the pair may assign responsibility for certain expenses during the marriage or spell out whether they’ll submit their taxes jointly or as separate filers.
Prenuptial Agreement Checklist: Major Decisions
Ultimately, a prenuptial agreement’s flexibility allows it to strengthen—rather than jinx—a marriage. Given the agreement’s potential scope, a couple may want to begin the negotiation process by creating a prenuptial agreement checklist of the issues they want to address. They can then craft a shared vision of their future to thoughtfully determine how they want to approach these key decisions. Some common concerns that couples might add to their prenuptial agreement checklist include:
- Do they want to have children? If so, who would be their ideal childcare provider?
- If one or both spouses have children from a prior relationship, how do they envision integrating them into their blended family?
- Will one spouse’s professional trajectory involve relocation and how will this impact the professional goals of the other spouse?
- What sort of home do they want and how do they plan to pay for its purchase and upkeep?
- Has one party brought a significant amount of debt to the union? If so, how will those obligations be handled?
- Do either have an idea for a business they’d like to launch? How should a startup be valued?
The conversations at the heart of a prenuptial agreement negotiation span both day-to-day details and major life transitions. In addition to serving as the couple’s financial blueprint, a prenuptial agreement may also ease tensions with members of the couple’s immediate family. For example, children from a prior relationship may be more accepting of a new spouse if a prenuptial agreement assures them of financial support in the event of their parent’s passing.
Alternatively, the parents of either spouse may more readily embrace their newest in-law upon learning that a prenuptial agreement will protect their child’s inherited wealth—or ensure access to support if the relationship reaches an untimely end.
Prenuptial Agreement Checklist: Execution Considerations
Couples interested in creating a prenuptial agreement should bear in mind that enforceability varies by state. However, there are a few broad best practices to consider:
- Note the Execution Requirements: The agreement should be in writing.4 Some states require additional execution formalities, such as acknowledgment, witnesses, and recording in public records where appropriate, depending on the agreement’s specific provisions.5
- Avoid Coercion: A prenuptial agreement is only enforceable if entered into voluntarily and free from duress or undue influence.6 To determine whether a prenup meets this standard, a court will typically look at the circumstances surrounding the agreement’s negotiation and execution. This means that couples considering a prenuptial agreement should begin discussing the agreement’s terms as soon as possible after deciding to get married. Signing the agreement days before the wedding may not impact the agreement’s enforceability if the couple had engaged in lengthy negotiations beforehand.
- Come Clean: The couple should provide each other with an accurate description of all property interests and financial obligations.7 While an express waiver of such disclosure may be permitted under some state laws, this trade of information supports a finding that the couple voluntarily entered into the agreement with a sufficient understanding of its impact.
- Enlist an Ally: Each party should work with independent legal counsel to ensure they understand how the agreement will alter their rights under state law.8 Again, a party may decide to waive this opportunity but the provision of both time and resources to work with counsel to protect one’s rights serves as a salient indicator of the agreement’s fairness and voluntary execution.
Times Up?
Faced with a prewedding period short on time and filled with competing demands, an engaged couple may delay financial planning until after the wedding. In this case, they may consider executing a postnuptial, rather than prenuptial, agreement. Postnups—which address many of the same topics that appear on a prenuptial agreement checklist—can also be used to address a change in financial circumstances or a necessary change to an existing prenuptial agreement.9 However, couples considering a postnuptial agreement should note that these agreements may be subject to potentially stricter enforceability standards.10 For example, some states require express consideration (that is, a benefit provided to each party in exchange for entering into the agreement) to create an enforceable postnuptial agreement.11 Additionally, a married couple that intends to stay married has a “confidential relationship” under the law of most states.12 This relationship imposes a duty of good faith and fair dealing in negotiating with one another that may not be present prior to marriage.
Prenuptial Agreement Checklist: A Powerful Tool
No longer harbingers of doom, prenuptial agreements have become a popular way for couples to put their marriage on stable footing from the outset. While some still shy away from discussing finances, prenups have become springboards for exploring wider marital issues. A tremendous amount of planning goes into making your wedding one-of-a-kind—but in the end, it’s a single, memorable day. Managing your finances, on the other hand, is a lifelong endeavor. Doesn’t it deserve the same degree of forethought and customization?
- Jennifer B. Goode
- Director—Institute for Trust and Estate Planning
1 Also known as a premarital agreement.
2 Syd Stone, Here’s Why More Millennials Are Getting Prenups, MarketWatch (Sept. 26, 2022), https://www.marketwatch.com/story/heres-why-more-millennials-are-getting-prenups-11663950442
3 Note, however, that a prenuptial agreement cannot bind a court with respect to the care or support of a couple’s children, including matters relating to child support, custody, or visitation. Additionally, a minority of states bar a waiver of spousal support under a prenuptial agreement, while two states, Louisiana and Iowa, restrict an individual’s ability to waive certain inheritance rights under a prenuptial agreement.
See Linda J. Ravdin, Premarital Agreements: Drafting and Negotiation, 1, 13-14 (American Bar Association 2017).
4 Traditionally, agreements made in contemplation of marriage had to be in writing and many modern state statutes
governing prenuptial agreements have similarly adopted this requirement. See American Law Institute, Principles of the Law of Family Dissolution, §7.04 (2022), at cmt. a.
5 See Ravdin, supra note 3, at 15-16.
6 Id. at 54-58; see American Law Institute, supra note 4, at cmt. b.
7 See Ravdin, supra note 3, at 85-103; see also American Law Institute, supra note 4, at cmt. g.
8 See Ravdin, supra note 3, at 75-81; see also American Law Institute, supra note 4, at cmt. e.
9 Note, however, that postnuptial agreements pertain to couples that intend to stay married, while separation agreements— that may be subject to different legal requirements—pertain to couples planning for the dissolution of their marriage. See Ravdin, supra note 3, at 33-50.
10 Postnuptial agreements may be subject to content-related restrictions not applicable to prenuptial agreements. See Ravdin, supra note 3, at 35-41.
11 Id. at 45-46; see also American Law Institute, supra note 4, at §7.01, cmt. c and Reporter’s Notes, cmt. c.
12 See Ravdin, supra note 3, at 42-44.