Prenuptial Agreements Frequently Asked Questions

What is a prenuptial agreement?

Prenuptial agreements are contracts entered into between people planning to get married. The purpose of the agreement is to define for the couple what the disposition of their financial assets will be in the event of divorce or death. In order to be valid they must be executed prior to the wedding. Both parties should have legal counsel and there needs to be a full financial disclosure of all assets of the parties. The agreement will ordinarily be enforced if it is executed properly and there is no fraud or duress involved in its execution. There is case law that suggests that if a prenuptial agreement is signed immediately prior to the wedding that could be evidence of duress. The courts in Massachusetts have also ruled that if at the time the agreement is sought to be enforced, a “second look” would take place to make sure that the agreement is not unconscionable in light of the circumstances at the time you are seeking to enforce it.

What happens if I don’t have one?

If you don’t have a prenuptial agreement the laws of divorce of the state you reside in at the time of your death of divorce will apply to your situation if you divorce, and the laws of inheritance will apply if you die. If you are comfortable allowing the state laws to determine these things there is no need to sign a prenuptial agreement.

What are the state laws of inheritance?

These are complicated and vary from state to state and from time to time they are amended. In Massachusetts you cannot completely disinherit a surviving spouse. This is the case in most states. Under Massachusetts law if you write a will that leaves nothing to your spouse the law gives the spouse a right to claim his/her forced share by filing in court. Under current law the spouse would be entitled to the income for life, on one third of the decedent’s estate if there are surviving children, or one half of the decedent’s estate if there are no surviving children.

What are the state laws of divorce?

These laws are also complicated and hard to summarize in one paragraph, in that the courts have a great deal of discretion in awarding alimony and dividing property on divorce. As a general rule of thumb, in Massachusetts, the longer you are married, the more likely it is that your entire estate will be divided equally with your spouse upon divorce. In a short term marriage the most typical approach is to return the parties to the situation they were in before they got married. There is no hard and fast rule on what constitutes a short term marriage or a long term marriage. The courts can consider as factors what your assets were at the time of the marriage, but merely because they were assets acquired before the marriage does not exempt them from division at the time of divorce. If there are any extenuating circumstances a court can award alimony or divide assets to aid a sick or disabled spouse even if the marriage was for a very short period of time. Courts are also entitled to consider marital fault when dividing assets and awarding alimony so there is no way of completely anticipating what will happen to your property in the event of divorce.

So why have a prenuptial agreement if state law covers these things?

The reason to have a prenuptial agreement is that you can try to determine in advance how to handle inheritance and division of assets and alimony on divorce. If you desire a greater degree of certainty you can expect that under most circumstances a judge will enforce a validly executed prenuptial agreement. So for example, if it is your view that you want all of your premarital property to remain yours in the event of divorce, and go to your parents, or children from a prior marriage, upon your death, that is something that will likely be enforced in a prenuptial agreement, but without a prenuptial agreement state law would generally not permit. With respect to alimony, the case law is a little less clear, but, if a prenuptial agreement contains a provision in which both parties waive alimony, this provision will generally be enforced, at least in a short term marriage. If the marriage lasts a long time or one spouse is particularly in need of financial help at the time of divorce, it may be possible that a prenuptial agreement will not be enforced, based upon all of the facts of that particular case.

So each case is different. The benefit of a prenuptial agreement is that you are increasing the chances that you can predict what will happen if you die or divorce. But there is no absolute certainty.