Prenuptial and Postnuptial Agreements

As part of any estate planning, you must consider any upcoming marriage and the inheritance rights you might want to bestow on your new spouse. This is especially true in second marriages where there are children involved. This would entail the use of a prenuptial agreement which is used before marriage to generally alleviate inheritance rights.

There are now postnuptial agreements that may be entered into between spouses to address similar issues. There has to be full disclosure of assets in the postnuptial agreement. There has to be a lack of duress in the creation of the postnuptial agreement. It has to be fair to both parties.

Admittedly, the postnuptial agreement is not as strong as a prenuptial agreement but it is better than no agreement at all if inheritance is at issue. Given this precaution, each party should be represented by counsel.

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What rights will the Prenuptial Agreement affect?

Question:
What rights will the Prenuptial Agreement affect?

Answer:
The scope of a Prenuptial Agreement can be as broad or as limited as the situation dictates or you and your fiancé desire. It can deal with just one asset or it can fix all of the rights arising out of the marital relationship.

For example, upon divorce in Pennsylvania either spouse may request that their marital property be divided between them. Rather than leave such a decision to the court or even to a negotiation process between the divorcing couple's attorneys, the parties themselves could agree prior to marriage on how their assets will be divided in the event of a divorce. Similarly, an agreement can fix their respective rights to alimony or support in the event of a divorce or separation. In both cases, the agreement avoids a protracted battle in the event the marriage ends in divorce.

Let's say your interest is to have your children inherit your property. Without a Prenuptial Agreement, your new husband would have certain rights to at least a portion of your property. With an agreement, however, you can ensure that your children will receive their inheritance.

As relates to your rights the following is important:
1. You and your fiancé should make full and complete disclosure of your financial worth. You should never waive your rights without full knowledge of what you are giving up.
2. You and your fiancé should each have an attorney. Your attorney can review the terms for reasonableness.

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Should I have a Prenuptial Agreement?

Question:
I am getting married this summer. It is a second marriage for both of us and we both have children from our prior marriages. My fiancé had his attorney draft a Prenuptial Agreement for us to execute. I am in favor of the agreement to protect my children’s inheritance. However, I want to make sure I understand the future ramifications. Should I also hire an attorney? What rights will the agreement affect?
Should I also hire an attorney prior to executing a Prenuptial Agreement?

Answer:
Yes!!!!!!!
The purpose of the agreement is to alter the rights that you would otherwise have upon divorce or death of your spouse. Your attorney will focus on the rights that you give up, will make sure you understand the terms of the agreement and, if necessary, will amend the proposed agreement (or draft a new one) to address your concerns.

It used to be that only those with vast fortunes to protect considered a Prenuptial Agreement as part of their wedding plans. Even though such steps may not be necessary for every couple, in light of the ever-increasing divorce rate and more common second and third marriages, many couples, like yourself, readily welcome the suggestion of a Prenuptial Agreement, especially to protect the interests of their children from a prior marriage.

More on Prenuptial Agreements tomorrow.

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