FAQs about premarital agreements

Do I need a premarital agreement?

Many people believe that premarital agreements are only beneficial to protect the assets of wealthy people or people with children from earlier marriages. While it is true that asset protection and estate planning are still significant reasons to consider having one, a well-crafted, comprehensive premarital agreement is also a good way to avoid the expense and conflict that may arise if the marriage does not succeed.  A premarital agreement can also set out your rights and obligations in advance of any potential future difficulties.

What issues can be the subject of a premarital agreement?

It can establish your rights and obligations with respect to the ownership and use of property during your marriage; your ability to incur or pay off debt without your spouse’s participation during your marriage;  to distribute property in the event of separation and divorce; to establish or waive alimony or other spousal support rights and obligations in the event of separation and divorce; to provide for or waive inheritance rights in wills and otherwise; to provide for or create rights to life insurance policies and other death benefits; and even to govern various aspects of your marital relationship, provided that your agreement does not violate public policy or criminal statute.

What formalities are required in order to create a valid premarital agreement?

A premarital agreement needs to be in contemplation of an impending marriage (which actually takes place) and signed by both parties.  Both parties to the agreement should provide full disclosure of the nature and extent of their assets, debts, and income to each other or waive their right to have such disclosure prior to signing the agreement.

Do we need a lawyer in connection with creating a premarital agreement?

While it is possible for you to create your own agreement, the agreement is more likely to be enforceable and to say what you want it to say if it is drafted by an attorney.  In addition, it is always helpful to be fully informed regarding what your rights and obligations would be in the absence of the agreement and how the various terms in the agreement may affect those rights.  Finally, because you are dealing with important individual rights and obligations, it is not appropriate for you and your prospective spouse to use the same attorney.  It may violate the ethical rules governing attorney conduct for the same attorney to represent both parties in the negotiation and drafting of a premarital agreement.

Am I required to sign if my spouse-to-be asks me to?

The question of whether or not to enter into a premarital agreement and, if so, what the terms of the agreement should be is personal to you. You cannot be compelled to sign an agreement or to give up any of your rights if you do not want to.  Often, by talking openly about the reasons one or both prospective spouses may desire a premarital agreement and by negotiating a fair exchange of rights and obligations, you can enter into your marriage with some certainty of the outcome if the marriage does not succeed.

Am I forever bound by my signature on a premarital agreement?

In general, if you voluntarily enter into and sign a premarital agreement based on full disclosure or a waiver of full disclosure, your agreement will be enforceable.