What’s the Deal with Premarital Agreements (Prenups)?

Premarital agreements aren’t just for rich folks – they’re for anyone who is concerned about losing control of their property as a result of marriage. This includes people who were previously married, especially if they have children from the prior marriage, and individuals who own their own business.

The first key to an effective, enforceable premarital agreement is independent representation. That means each party to the agreement must have his or her own attorney, even if the parties share the same views on what the premarital agreement should say.

The second key to an effective, enforceable premarital agreement is full disclosure of each party’s assets to the other. This makes sense – if you are agreeing to give up the right to another person’s property, you should know exactly what you’re giving up.

The typical premarital agreement usually covers three scenarios: during the marriage, upon divorce and upon the death of a spouse. California law gives spouses certain rights under each of these scenarios, but a premarital agreement may be used to change (or eliminate) these rights.

Perhaps the simplest and most common type of premarital agreement is what I call the “yours is yours, mine is mine” agreement. As its name indicates, each party has separate property during the marriage, and neither party has the right to the other’s property upon divorce or the death of one spouse. This doesn’t prevent either spouse from making gifts to the other during life or upon death (e.g. in a Will); however, neither spouse is required to make such gifts.

This is only the simplest analysis and discussion of premarital agreements; please feel free to call if you have further questions or to schedule an appointment.


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