Sometimes prenups are sensationalized by the press, characterized as controversial contracts that can outrageously disinherit or deprive one spouse of assets or spousal support at divorce or death of the other spouse. On the contrary, once you take the stereotypes and emotion out, a prenuptial or premarital agreement can be a smart, solid tool for financial and estate planning that creates a predictable plan for disposition of assets brought in to or accumulated during the marital relationship.
A prenup is a valid contract between two people engaged to be married that becomes effective upon the marriage. Most premarital agreements deal with property ownership and spousal support by changing how those issues would otherwise likely be resolved by law upon divorce or death.
Clearly, when you are planning a big wedding and enjoying the romance of it all, talking about financial planning, especially where it concerns the contemplation of future divorce or death, is just not high on the list. But it is a conversation that should be had and that can make a couple stronger for having tackled difficult issues up front.
Common situations for prenups
It is especially important in a couple of situations. One is when a future spouse is wealthy; expects future inheritances or distributions from trusts; owns a business; has sophisticated assets like complex securities, executive benefits or offshore accounts; or has children or other relatives whom the person would want to receive certain assets instead of the other prospective spouse in the case of divorce or death.
The second situation in which considering a prenup is smart is when a person is about to enter into a marriage to someone with more wealth and assets. It may be important to preserve and enhance the property and spousal support rights of the person with fewer assets during and after the marriage.
California prenuptial agreement law
Premarital agreements, as they are called in California statutes, must meet strict legal requirements in order to be valid and enforceable in the state. Some of legal aspects of prenuptial agreements in California include:
- A prenup must be written and signed by both parties.
- The parties can contract about almost anything that does not violate public policy or a criminal law that would subject a person to a penalty for violation, or that negatively affects a child's right to child support.
- A provision regarding spousal support or alimony is unenforceable if the person "against whom enforcement of the spousal support provision is sought" did not have his or her own lawyer at signing or if the provision is unconscionable (shockingly unfair) at the time of enforcement.
- To be valid, a prenup must be entered into voluntarily. A court must look at several detailed factors to determine involuntary execution including independent legal advice or adequate waiver thereof along with separate explanation and proof of understanding in writing of the rights and obligations being given under the agreement, time between presentation and execution, proficiency in the written language of the agreement, capacity to contract, duress, fraud, undue influence and others.
- A prenup is invalid if it was unconscionable when signed and if full disclosure of all property and debts had not been made or adequate waiver in writing of that knowledge had been made, or one party could not have had adequate knowledge of that property and obligations of the other.
California law concerning premarital agreements is extremely complex and it cannot be overemphasized how important it is for anyone considering one to have independent representation by an experienced lawyer.