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Necessity

Formerly utilized by persons of wealth and property, prenuptial agreements are becoming more common as marriages occur later in life, when careers have been established and significant assets have been accumulated. Additionally, prenuptial agreements may be vital in determining inheritance rights of children from a previous marriage. By entering into a prenuptial agreement, the couple is directing that property rights are determined by the contract rather than the usual rights afforded to a spouse under the law. Under the agreement, the less wealthy spouse may receive a significantly reduced distribution of property on divorce or death.

SIDEBAR: Spouses residing in a community property state have their assets divided equally on divorce. In other states, courts divide property based on equity and fairness. The prenuptial agreement supersedes laws concerning the division and distribution of property when the marriage terminates.

The prenuptial agreement generally protects the spouse with the greatest wealth on termination of the marriage. Property, cash, assets and family businesses owned by either or both of the spouses are protected against a claim by the other spouse if the marriage ends. The agreement directs the distribution of property when the marriage ends, either by death or divorce, along with the amount of support payments a spouse is entitled to receive. By entering into the prenuptial agreement, the couple is removing the court from the determination of how a couple's property will be divided in a divorce, or in an estate matter should one spouse die. Some prenuptial agreements expire after a period of time. For instance, after 10 years of marriage the agreement may expire and the spouse's legal rights will be determined under the law of the state where they reside.

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