With many couples choosing to wed for the first time later in life, and other couples choosing to re-marry in their golden years, changes in marital status can impact a family’s estate planning in important ways. Prenuptial and postnuptial planning have become less taboo topics among these couples choosing to wed. From the initial conversations about this type of planning, to drafting these prenuptial or postnuptial agreements, to reviewing and incorporating the provisions of these agreements into new estate planning documents, both family law and estate planning attorneys should be aware of the substantive nuances each brings to the client relationship as well as ethical issues in this type of engagement. Through proactive planning and collaboration, attorneys and their clients can minimize alarm bells when the wedding bells start ringing.

Prenuptial Agreements

Generally, prenuptial, or premarital, agreements offer assurances for individuals and families to plan and protect multigenerational business, real property, or other significant assets in the case of divorce or death. Through advance discussion regarding and agreement upon matters, such as the division of assets or the extent of spousal support upon a divorce, couples may prevent, or minimize, lengthy and potentially contentious legal disputes in the future. A prenuptial agreement acts as a contract between the prospective spouses and typically takes effect upon their marriage. In order to be valid and enforceable, while neither consideration nor an attorney may be required, a prenuptial agreement should disclose the parties’ assets, address or waive the guidance of independent legal counsel, memorialize that the parties entered into the agreement voluntarily and with the necessary time to review and consider the terms of such agreement; a party may argue that a prenuptial agreement was coerced if finalized too close to the wedding date. While these prenuptial agreements may be modified or terminated in the future, or spouses may enter into a postnuptial agreement, these considerations are beyond the scope of this article. 

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