If you are planning a wedding, you may be wondering if you need a prenuptial agreement. It may be that your close friend is unhappy in her marriage and has shared with you that she regrets not having a prenuptial agreement. Or perhaps your parents are worried about preserving family assets and are encouraging you to enter into a premarital contract with your future spouse. You may also be thinking that having a premarital agreement that spells out how you will handle finances as a family could promote harmony and mutual understanding between you and your future spouse. Whatever your reasons may be for considering a prenuptial agreement, here are some important points to consider before investing the emotional energy and financial resources necessary to prepare one.
First, you need to understand what rights and protections will be available to you and your spouse after the marriage by operation of law if the two of you do not secure a prenuptial agreement. For example, in the District of Columbia, Maryland and Virginia, any assets you own at the time of your marriage will be treated as your separate property after the marriage so long as they are not “commingled” with marital assets during the marriage. Similarly, under the laws of DC, Maryland and Virginia, any inheritance you receive during the marriage will be your separate property provided you keep it separate and apart from the assets of the marriage.
By contrast, a spouse’s entitlement under the laws of DC, Maryland and Virginia in a divorce scenario are different from the rights acquired in a “death” scenario during the marriage. While your spouse can’t claim an interest in your separate property if your marriage ends in a divorce, he or she may be entitled to a share of your separate property as a surviving spouse after your death.
Other important considerations include the extent of your assets and how you and your spouse plan to handle the family finances. If you don’t have significant assets at the time of the marriage and you and your soon-to-be spouse plan to combine your incomes and assets after the marriage, then you may not need a prenuptial agreement. In many cases, however, the existing laws will not offer the necessary protections or may even be in conflict with the financial goals of your future marriage. In this case you will need a detailed and carefully drafted prenuptial agreement. An experienced family law attorney will help you to assess your unique goals and determine if your particular situation calls for a prenuptial agreement.