My wife and I celebrated our 11th wedding anniversary this month. October must be a popular month for weddings because I worked on three different prenuptial agreements during the month.
There’s no doubt about it; discussing a prenup is bound to feel awkward. For some, even bringing the topic up feels scary. I get that. I also don’t think everyone needs a prenup. When I got married, neither of us had anything. It doesn’t make much sense to agree on the division of separate property when you don’t have any. However, prenups made a lot of sense for my clients this month.
The first was a young couple, where the wife’s parents had substantial assets. She might inherit some family property one day, and the prenup specified that those assets would remain in her family if she predeceased her husband or if they later separated.
The second was for a couple who were both on their second marriage and had minor children from previous marriages. After going through difficult divorces, they were interested in a prenup to put them both on an equal footing and to ensure their children from previous marriages would be provided for if they died before their new spouse.
The last was a case where a court voided a prenup. It started as a probate action. The husband died after 20 years of marriage, leaving his wife with nothing in his will. Before marriage, the parties executed a prenup that provided the wife could not elect against the will and assert her right to a statutory share of the husband’s estate. However, the court held the prenup was not valid because it wasn’t fair. The husband owned significant business assets and presented his wife with a prenup shortly before the wedding. He didn’t disclose his assets fully and didn’t give her sufficient time to obtain independent legal advice. As a result, the agreement was invalid, and the wife was entitled to 1/3 of the husband’s estate.
A prenup should be fair to both parties. A one-sided agreement or one that tries to hide the ball from the other spouse can be invalidated if they are challenged. But parties who are open and honest when entering a prenup can achieve some peace of mind about their new financial arrangement.
When you have a good reason for a prenup, the conversation becomes a lot less scary. It prompts a frank discussion about the elephant in the room. Afterward, the couple can enter their new marriage with clarity about each other’s financial position and their respective rights.
For parties who are honest with each other, the prenup conversation is nothing to be afraid of.
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