Is a Prenuptial Right for You?

Once upon a time, prenuptial agreements were fashionable only among the rich and famous.  Quite obviously the underlying motivation was the protection of wealth in the event of divorce or death.  Not all who followed this path were rich at the time of the actual drafting; for others, the anticipation of inheritances or increased value of existing holdings or even rights to books, music, inventions, and the like that might bring future wealth provided motivation to protect one’s future entitlements or expectancies.

Yet, like so many trends and changing notions, over time prenuptial agreements have become more fashionable.  While clearly all future spouses do not embrace the idea of a prenuptial agreement, public sentiment is changing. Many no longer react with shock, seeing their romantic notions doused with ominous omens of a dark future.  To the contrary, future partners may be more pragmatic, seeing the fashioning of a prenuptial agreement as an opportunity to discuss, in real time and with real numbers, what each party is bringing into the marriage and how estates, individual and joint, will be handled during the marriage.  Each learns not only of the other’s history, what each one “has,” but also what each may receive in the future.  Like a great reveal, the past, present, and future emerge as topics for consideration, replete with numerical backup.

In April of 2023 and again in May of 2023, The New York Times published articles on prenuptials, presenting tales of “ordinary” people embracing the concept of prenuptial agreements.  The question of whether a prenuptial is good for you and your future spouse needs to be answered.  Consider those who may follow this path:

• Couples where one individual or both parties have children from prior marriages or relationships and wish to protect their children’s future in the event of death and/or divorce.
• Couples who are marrying after having established (one or both) financial wealth, or simply financial independence, and wish to maintain their financial independence during the marriage.
• Couples where one party or both anticipates receiving, during the marriage, gifts and/or inheritances and wish to retain those assets in the event of death and/or divorce.
• Couples whose families (one or both) require protection of inheritances in the event of death and/or divorce.
• Couples who wish to create an agreement for the present with terms for changes over time, rather than rely on both parties’ consent to fashion a post-nuptial agreement in the future.
• Couples who want to set out terms for how they will manage finances during the marriage.

In truth, anyone and everyone can elect to create a prenuptial agreement for a variety of personal reasons.  These agreements do not go to court and therefore may never be enacted or contested.  Many prenuptials are ignored, even in situations where there are divorces.  Some are replaced by post-nuptials; others no longer seem relevant or important.  Perhaps for some individuals, the value of the prenuptial is to begin a dialogue between future partners on their priorities and needs, not only about money but also about roles and concerns for the present and the future.  The agreement, in and of itself, may be less important than the sharing of feelings and facts.  Here mediation offers a confidential and safe environment to broach difficult topics and reach decisions. The question then—again—is a prenuptial right for you and your partner?