Four Situations When You Should Consider a Prenuptial Agreement
If you are planning to marry, you should have a prenuptial agreement if:
- it's your first marriage, and you are an elder couple; or
- one, or both, have been previously married, especially if either party (or both) have children from the previous marriage; or
- one spouse has a hazardous occupation or health problems; or
- one spouse is involved in owning and operating a family business.
A Prenuptial Agreement is an important tool that can protect both spouses when a couple decides to marry later in life. Under Massachusetts law, the prenuptial agreement can limit the rights of a husband or wife to the whole or any part of any property or assets that are brought to the marriage. Mass. Gen. Laws ch. 209, §25.
The agreement can set out the rights of the surviving spouse upon death of a spouse, and/or upon divorce. The agreement will be considered a valid contract, as long as both parties were open and honest about their income, assets, liabilities when they made the agreement.
Five Sample Provisions
This 5 point list is just a sample of the specific decisions that you can write into a prenuptial agreement.:
Things You Cannot Do With a Prenup
There are some things a prenuptial agreement cannot do:
- it cannot waive the rights of the affianced to a qualified plan. Under the Retirement Equity Act of 1984, [26 USC §401(a)(11) and §417] the Joint and Survivor Annuity form of payment is required, unless your spouse has explicitly waived the right to receive benefits from most qualified plans. (This spousal waiver requirement does NOT apply to IRA's). But, the spouse's rights to the qualified plan cannot be waived in a prenuptial agreement. "An agreement entered into prior to marriage does not satisfy the applicable consent requirement." That's because the "waiver" would have been made before the couple were spouses.
- it cannot enforce the ownership rights to real estate against third parties (people other than the spouses) unless it is recorded in the registry of deeds within 90 days after the marriage. Mass. Gen. Laws ch. 209 §26.
If you are planning to marry, we can work with the attorney for your spouse, and prepare an agreement that will serve your needs, and protect the interests and harmony of your family. Please call us for an appointment.
Case Examples Illustrate What Can Happen When the Couple Does Not Have a Valid Prenuptial Agreement
Wife did not understand
Wife allowed to contest PreNup and deceased Husband's Estate in North Carolina court.
Executors of Estate of the Widow of
Country Music Star Jim Reeves could not use a Prenuptial Agreement to defend claims by Mary Reeve's second husband.
Nashville Appeals Court found that
surviving husband had not been given a detailed schedule of Mary Reeve's assets.