Should a Prenuptial Agreement be Part of Your Estate Planning?

Some folks have the mistaken notion that a prenuptial agreement is only for the super wealthy or those who have little faith in the strength of their marriage. So, the thought is that a wealthy person needs a prenuptial to prevent a gold-digger from entering a marriage just so that they can later divorce and take an underserved portion of the family wealth that they were not part of building.  Others may think that if a person requests a prenuptial agreement, it demonstrates that they are not confident that the marriage will last and that it is presumed that a divorce is likely at some point.

However, there are many situations where a prenuptial agreement makes good sense, regardless of the size of a person’s financial wealth and absent any presumption that the marriage is likely to fail at some point.

Prenuptial Agreements to the Rescue

A prenuptial agreement is essentially a contract between two individuals preparing to marry that details how property will be owned throughout the marriage and what rights each spouse has to the property of the other. The agreement specifies the nature and extent of the property that each spouse is bringing into the marriage as well as how that property will be divided if the couple ever divorce, or one spouse dies during the marriage. The agreement can outline the extent to which a spouse has the right to give their property to their children from a different relationship or to charities or other beneficiaries through estate planning. It also allows each spouse to waive certain rights to the property of the other spouse, such as spousal elective share rights provided under state law.

In addition, with a prenuptial agreement, both spouses can reserve the right to leave property to each other in their subsequent estate planning through a will or a trust. So, a prenuptial agreement does not necessarily require that each spouse waive forever all claims to the separate property of the other spouse. Prenuptial agreements can be renegotiated over time as circumstances in the relationship change and if both spouses agree. Ultimately, a prenuptial agreement allows an individual who plans to marry to settle the uncertainty surrounding property rights issues that often come with marriage and the corresponding legal rights that attach to married couples.

When Should You Consider Getting a Prenuptial Agreement?

In general, a prenuptial agreement is helpful under the following circumstances:

  • You are marrying or remarrying and want to keep your finances separate from your spouse’s.

  • You want to make sure that your estate plan is not disrupted by the legal rights to your property that your new spouse automatically receives upon your death.

  • You want to make sure that your property passes to your children, to a charity, or to someone other than your spouse when you die.

  • You want to spell out exactly what property you will give your spouse (or what you will get from your spouse) if you divorce.

  • You and your spouse each want to be protected from the other’s individual debts (such as business debts or student loans).

  • You want to make clear who will be responsible for what (financially, legally, or otherwise) during your marriage.


Prenuptial agreements, wills, and trusts can be powerful legal documents that can play a crucial role in helping you achieve your financial goals and protect you and your loved ones from unfortunate surprises when it comes to passing on your property to those you care about. Properly implemented, they can provide significant peace of mind. If you would like to learn more about this topic, contact us today to discuss this important legal tool.