Four Reasons to 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:

The bride and groom disclose their monthly incomes, and decide how much of their income they would use for their joint lives together;

The bride and groom decide on what rights they might have to the retirement plans of the other spouse, and they would declare how their individual retirement accounts would be distributed upon their deaths;

If either spouse have long term care insurance, they declare how the premiums would be paid, and whether their other health care expenses and premiums would be paid from their joint funds or individual assets;

If Party A owns a home, the couple could agree on who would own the home, and what rights to the home would have, if Party A predeceases Party B;

If Party B and her brothers and sisters are involved in a family business, the agreement would set out the rights of her family members to ownership interests in the business.

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.
  

Case Example Illustrating What Can Happen When the Couple Does Not Have a Valid Prenuptial Agreement:
Lawsuit by companion of Robert J. Lurtsema (deceased radio host of Morning Pro Musica) who cared for him as he lost his eyesight and a battle with lung disease.
Appeals Court Decision
SJC Decision
Docket History
If you are planning to marry, I 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 to schedule a Discovery Meeting
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