When entering into a premarital agreement, it is important to include the following:

A Recitation of Circumstances including purposes of agreement, intent of parties, contributions anticipated during marriage, and employment plans.

By properly reciting the circumstances including the purposes of the agreement and intent of the parties with respect to property, income, and contributions, employment, etc, the parties and possibly a reviewing judge will better understand the agreement. Proper recitations can clarify that there has been full disclosure, enforce the probable finding of substantive fairness, and help avoid ambiguities for the parties and a future reviewing court.

All legal counsel should be identified or, if waived, the conditions and circumstances regarding the waiver of this right.

The lawyers must be properly identified. State a spouse's waiver of counsel with particularity, detailing that he or she had an opportunity to consult with counsel, but chose not to do so. Also, include language confirming full disclosure of the legal rights that are being affected by the agreement.

All premarital property should be clearly defined. Including intent to retain, planned disposition, full legal descriptions of real property, what to do with increased value over time, income earned from property, etc.

The parties' intentions with respect to premarital property must be detailed: do they expect to retain it or dispose of it in some manner, with the non-owing party sharing in any of the value? The property must be properly identified with legal descriptions of real estate. The agreement should cover any premarital property that increases in value over time or that generates income.

There should be full disclosure of assets, liabilities and income. Provisions should include attached financial statement(s) attached, tax returns or data, financial experts made available (i.e., accountants, brokers),

Financial statements and tax returns, as well as other disclosing information, should be included to verify that there has been full disclosure.

Plans Regarding Disposition of Marital Property. According to law, disproportionate cash settlement, increase provisions over time, earned income, income earned from property,

In contrast with premarital or other nonmarital property, will marital property be subject to applicable divorce or descent law? Will there be a disproportionate treatment of marital property? In the event of a dissolution or death, will there be a cash settlement regarding one party's claim to marital property? Should any sharing in the marital property increase over the duration of the marriage? Also, detail how earned income and income received from the marital property will be treated.

Spousal Maintenance (Alimony). If waived, is there a cash settlement in lieu of specific amount?

The agreement should indicate whether maintenance (alimony) is waived, whether the alimony right will be satisfied at various times with a cash payment or the disposition of other property, and/or whether the right to maintenance will increase based on the duration of the marriage.

What About Life Insurance and Retirement? Beneficiary designation, verification,

A provision should be included if one party will be named as beneficiary of life insurance. That party must have the right to verify compliance by obtaining documentation or information from the other party or directly from the insurance company.

Controlling Law. Which state law applies, the effect of a move (to or from a community property state), all execution and other statutory requirements (witnesses, notary) must be met,

A choice of various state laws may sometimes be made. The agreement must be flexible to deal with any move. For example, if the parties move to a community property state, will the agreement remain in effect, or will the community property state law apply? It is imperative to meet all of the statutory requirements to comply with controlling law for antenuptial agreements to be valid.

Severability of Unenforceable Terms. Provision included and also what to do as far as modification is concerned if there is a change in law

Because some provisions of the agreement may be interpreted as overreaching or otherwise unenforceable, a severability provision should be included. If the law changes, a provision may be included to state that the law in effect at the time of execution controls, or that the parties are willing to allow future modifications of the agreement if the applicable law changes.

Procedure to Cancel or Modify Agreement. Procedure included and explained, reduction of effect over time,

Most agreements allow the parties to alter the provisions; sometimes the agreement is phased out over time.

Consent to Trusts and Wills and Other Beneficiary Designations. Specific reference to Trust and/or Will, provision requiring spousal consent to any beneficiary designations, actual spousal consent to pension and profit sharing beneficiary designations attached to agreement, spousal consent to Will attached to agreement, Spousal consent to Trust,

It is imperative to specifically identify all trusts or wills that may impact the agreement. Specific consents often must be contractually agreed to be given and actually signed to comply with applicable law, in some states.

Will. References premarital agreement, terms must be consistent, consent to will executed, etc.

It is usually important to coordinate the will with the premarital agreement, sometimes cross-referencing the agreement to make sure the provisions are consistent. An actual consent to the will should be executed consistent with applicable law.

Trust Agreement. References premarital agreement, terms consistent, revocable or irrevocable, list of assets, cnsent to trust agreement executed

Any trust should be coordinated with the premarital agreement, and there may be cross-referencing in the documentation. A decision must be made whether or not revocable or irrevocable trusts will be used, and the trust instrument should also list the assets and contain the required consents that are consistent with applicable state law.

Surviving Spouse's Rights. Homestead, Cemetery lot, Allowances, Intestate share, elective share

It is important to specifically detail the rights of the surviving spouse, indicating which ones are waived and those that will not be impacted by the provisions of the premarital agreement.

Copyright 2000, Flying Solo