Prenuptial Agreements

Prenuptial agreements, also known as antenuptial agreements, premarital agreements, or simply prenups, are powerful legal tools for asset protection planning.


Generally, a premarital agreement is a written contract between two individuals executed prior to marriage. These agreements are used to provide for the division of assets in the event of a divorce. The requirements for a prenuptial agreement are similar to those of a waiver of the spousal elective share as previously discussed in “Wills Part X: Waiving the Spousal Elective Share.” In order to be valid a prenuptial agreement must meet the following requirements:


  1. It must be in writing.
  2. It must be signed by both parties.
  3. Each party must have opportunity to obtain separate legal counsel of his or her own choosing.
  4. There must have been full and complete financial disclosure by both parties prior to signing the agreement.
  5. The terms of the agreement must be fair and reasonable both at the time of execution and the time of the divorce.


Beyond these requirements, any court asked to enforce a prenuptial agreement will look to other factors in determining the enforceability of the agreement or a provision within it. These factors can include the fair division of the assets of the marriage based on the ages of the parties, their relative net worth, their earning potential, and the division of child care both during and after the marriage.


Prenuptial agreements only afford asset protection to couples who are planning on marrying.

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