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A prenup — short for prenuptial agreement — is a legal contract that two people create before they get married. Prenups list each person’s property and outline their rights during the marriage and after it ends, whether by divorce or death.
Prenups have a reputation for helping wealthy people protect their assets, but they can also protect one spouse from another’s debts, set up spousal support for a stay-at-home spouse, and protect an inheritance for children from previous marriages.
A prenup can be an important first step for a couple’s estate plan. States have different laws on prenups, so it can be helpful to consult an attorney to ensure your prenup is legally valid. If you don’t have a prenup, your state’s laws on community property determine property ownership during marriage and in the event of divorce.
» Estate planning? Here’s a 7-step guide to get started
Pros and cons of a prenup
Reduces conflict in case of divorce.
Can be uncomfortable for couples to consider the possibility of divorce.
May help prevent someone from losing their own assets or becoming responsible for the other person’s debts.
May be invalidated by a court if not set up properly according to state laws.
Starts a conversation about finances and estate planning in a marriage.
Can be expensive to set up, depending on the complexity of the assets and attorney fees.
Components of a prenup
The required elements of prenuptial agreements — also called premarital agreements — can vary by state. Depending on the needs of the couple, a prenup might include the following:
A list of assets each person owns, including property, inheritances and businesses. The couple will decide how they will divide these assets in the event of divorce and how they will divide any assets they acquire while married. There may be limitations if the couple lives in a community property state.
A list of debts belonging to each person, including student and medical loans. The couple will decide whether to keep that debt separate and how to handle any debt they acquire jointly during the marriage.
Provisions for children from a previous marriage, which can include protecting their inheritance in the event of a divorce.
Financial rights during the marriage, including management of joint accounts and bills.
Tax implications, including an agreement to file jointly or separately, and responsibility for tax liabilities.
Provisions for divorce, such as giving up the right to alimony. his isn’t possible in some states and may be disputed in court if one of the parties didn’t obtain independent legal counsel before signing the agreement.
Provisions for death, including survivors or death benefits.
Additional clauses such as confidentiality, pet custody and marital residence rights.
It’s also important to note what a prenup doesn’t include. Prenups can’t have provisions for child custody or support, as your state court will evaluate those choices in the event of divorce. They also can’t make any requirements for nonfinancial household duties, such as which chores each spouse does.
A court can overturn a prenup clause during divorce proceedings if it finds it to be unfair or unenforceable, signed under coercion, or if one party was unable to consult an attorney.
How to create a prenup
You can consult an attorney to draft a prenuptial agreement. You can also try to do it yourself by downloading a free state-specific form or using online legal software. In any case, creating a prenup generally has two steps:
Both parties agree on the terms and discuss options. This can be done with or without legal representation.
Both parties sign the contract. Be sure to find out if your state requires a witness signature and/or notarization.
» Learn more: How to choose an estate planning attorney
Prenup vs. postnup
The main difference between a prenup and a postnup is when they are created. A prenuptial agreement is signed before two parties get married, and a postnuptial agreement is created after a couple is married.
Postnups can contain the same information and tend to comply with the same rules as prenups, but they’re often made in response to a life event after marriage. Such events can include the starting of a new business, an inheritance, a spouse ceasing employment or a desire to protect assets if a prenup was not done before the marriage.
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