It’s spring, love is in the air, and weddings abound.  For an estate planning attorney, these events conjure up unromantic thoughts of prenuptial agreements.  A prenuptial, or premarital, agreement is a contract between two people who are planning to marry, by which they agree in advance to a division of their assets in the event of divorce or death.

Whenever clients express concern about protecting assets their child may inherit if the child’s marriage ends in divorce, the first question I ask is whether a prenuptial agreement was signed prior to marriage. These agreements are the single best way to protect inherited assets in the event of divorce.

Here are five facts to know about prenuptial agreements:

1. If You Brought It You Keep It. A basic prenuptial agreement provides that in the event of divorce, each party to the agreement will leave the marriage with the assets that each brought into the union or inherited during the marriage.  If a party owns an interest in a family business or co-owns property with other individuals, the agreement will stipulate that those interests are not subject to division between the parties in the event of divorce.  This prevents marital discord from impacting those assets and the other owners.  The agreement will also address the division of any jointly held assets in the event of divorce

2. Follow the Rules. A prenuptial agreement must be created with an eye towards whether the agreement will be enforceable if the parties divorce.  Understandably, the parties to a prenuptial agreement do not anticipate divorce occurring, and may not approach the creation of the agreement with the seriousness which is warranted. This is especially true if the agreement is being negotiated in the midst of wedding planning and the couple is under pressure from their parents to sign the agreement.  However, Massachusetts courts have established very clear parameters that must be followed for a premarital agreement to be enforceable if and when the time comes for the agreement to do what it was created to do – protect assets.

3. Separate Counsel Essential. When creating and negotiating a prenuptial agreement, it is mandatory that both parties have their own attorneys.  To many happy couples, it seems like a waste of time and money to meet and confer with separate lawyers.  However, this ensures each party understands how the terms of the agreement benefit and obligate them, and ensures the agreement will be enforceable in the future.  In order to be enforceable, Massachusetts courts have held that a prenuptial agreement must be fair both at the time the agreement is signed and at the time it is sought to be enforced.  Separate counsel also serves to ensure that one party is not overreaching when the agreement is created, which would jeopardize enforceability down the road.

4. Disclosure of Assets. Each party to a prenuptial agreement must fully disclose his or her assets, including anticipated inheritances.  The assets of each party are typically detailed on schedules to the agreement.  Full and complete disclosure of assets is also essential to the agreement’s enforceability.  If there are particular assets that are important to protect, such as a family business or vacation property, the agreement can be tailored to those particular assets, which the parties may find more palatable.

5. Timing is Everything. In order to be enforceable, prenuptial agreements must be entered into freely by each party, without coercion or influence from the other party or outside influences.  For this reason, courts have found that the agreement must be entered into far enough in advance of the wedding that neither party feels coerced into signing.  This can be one of the most difficult aspects of creating a valid agreement, as the parties are often busy with pre-wedding planning, which takes up a great deal of their time.  This is a good reason to get the agreement out of the way early on in the planning process, so that the months immediately before the wedding can be spent focusing on the big day.

There is no doubt that discussions about prenuptial agreements are difficult and can create tension between a parent and child, between a parent and the child’s future spouse, and between the happy couple themselves.  However, the value of these agreements in protecting family assets is significant.  Depending on the wealth or potential inheritance each party to the agreement will bring to the marriage, a prenuptial agreement may be a suggestion that both parties, and their parents, can get behind.

Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, visit www.ssbllc.com or call (781) 461-1020.  This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.

Published June 2015