BASIC PREMARITAL AGREEMENT CHECKLIST
BASIC PREMARITAL AGREEMENT CHECKLIST
In preparing a premarital agreement, it is important to understand (1) your goals, (2) whether the law will allow you to reach your goals, (3) what a premarital agreement can and can not cover, and (4) how to negotiate an agreement. Bottom line: a premarital agreement is a business deal. So be as specific as possible about important topics, including:
1. In order for the parties -- and possibly a judge who may review the agreement later -- to better understand the intent of the agreement and the conditions under which it was entered, it is important to include in the agreement a statement of the current circumstances of both parties, the general and specific purposes of agreement, what the parties intend to accomplish, what contributions of each are expected during the marriage, employment plans, etc.
With these types of clarifications, it is more likely to show that the agreement was a product of thought, not whim, and that there was full financial disclosure so that, should difficulties later arise, there is evidence that the agreement is substantively fair. Being specific will also help avoid potential ambiguities for both the parties and a court which may later review the document.
2. The attorneys for each party should be clearly identified. If either party waives the right to have a lawyer, the conditions under which the waiver was made are essential.
No one should enter into such an agreement without at least an opportunity to consult with a lawyer.
3. The types of property – premarital, marital, inherited, non-marital, etc. -- should be clearly defined as should the intent of the parties with regard to the disposition of each type of asset. It is important to include complete legal descriptions of real estate, stocks, etc., and for the parties to state clearly how they intend to treat increases in the value of property, income earned from property, etc.
4. There should be full financial disclosure of assets, liabilities, and income. To bolster these disclosures, tax returns, financial statements, and related documents should be attached to the agreement. In this way, a court that may later review the agreement can be comfortable that there was full disclosure.
]5. The parties should agree on how marital property that is acquired during the marriage will be handled. In other words, will the division of marital property be subject to state divorce laws, be divided 50%-50%, or be subject to division according to a formula? In addition, the parties should decide whether the economically dependent spouse should receive a greater share of marital assets the longer the marriage lasts.
6. Dealing with alimony or spousal maintenance is a difficult issue. If the economically dependent spouse is going to waive support, there should be consideration in cash or some other agreeable form. The parties should also decide whether the economically dependent spouse should be awarded greater amounts of support for longer periods of time should the marriage continue.
7. Agreements should be made about life insurance and retirement issues. Because retirement beneficiary waivers can not be validly waived prior to marriage, the agreement should have a built-in provision for the parties to sign a ratification of the agreement and beneficiary waiver after the marriage. In addition, the agreement should include the wishes of the parties concerning life insurance beneficiary designations, along with the right of the beneficiary to secure information from the insurance company to assure compliance, coverage, cash value, etc.
8. The parties should agree on what state law will control the agreement should there be disputes about the agreement itself, estate issues after the death of one of the parties, etc. In addition, if the parties move from a community property state into an equitable division state and have a dispute, the agreement must be sufficiently flexible to deal with this contingency.
9. Should any provision of the agreement be found to be invalid, without a "severability clause," the entire agreement might be found invalid. This is especially important where a court later finds certain provisions of the agreement to be unenforceable. For that reason, the parties should decide on how to treat unenforceable terms and modification should there be a change in the law.
10. Some people want the agreement to terminate over time. This is called a "Sunset" provision. For example, the agreement may provide for waivers of support for the first five years, a set amount during the next ten years should there be a divorce, and a termination of the waiver if the marriage lasts 15 years. This provides an incentive for the parties to stay together.
11. If appropriate, there should be provisions in the agreement which require the spouses to consent to beneficiary designations, pension and profit sharing beneficiary designations, the manner in which a will or trust is prepared, etc. It is essential that all wills and trusts be clearly identified and attached to the agreement. Sometimes an irrevocable durable special power of attorney is used to assure that if one party refuses to sign documents, the other can do so in this fashion.
12. Because a premarital agreement often contains estate planning and related provisions, wills and estate documents must be consistent with the agreement. Similarly, if trust agreements are integrated into the premarital agreement, terms must also be consistent. The parties must decide whether revocable or irrevocable trusts are to be used.
13. It is important to specifically describe which spouse’s rights are preserved and which are waived – such as Surviving Spouse's Rights, Homestead, burial allowances, intestate share, elective share, etc.
14. And don’t forget that premarital agreements won’t solve all of your woes. Long-term care, necessaries, and taxes/penalties (if you file joint returns after marriage) are still
© 1997, Flying Solo
This file is designed to provide you with the basics, but is not intended as legal advice. The laws of each state are different, so please do not act until you have been fully advised by a lawyer of your choice.