A pre-nuptial agreement (sometimes called an ante-nuptial agreement) is an agreement entered into by two people before they marry that changes the normal legal rights and obligations that would arise from the marital relationship itself. When two people are married, a legal relationship is created and this relationship carries with it legal rights for both parties as well as legal obligations by each party to his or her spouse. These rights and obligations vary from state to state in their specific details. In Pennsylvania, this bundle of rights includes certain property rights and support rights during the marriage, certain property rights upon the death of a spouse and certain property and support rights upon separation or divorce. Now that Pennsylvania recognizes same sex marriages, these rights and prenuptial agreements are relevant both for opposite sex and same sex couples contemplating marriage.  This article will discuss those rights, how they can be modified by a pre-nuptial agreement and why the agreement is important. The specific topics are listed below. [Please see the WARNING NOTE at the bottom of this web page.]

Topics Discussed Below

What Rights Arise From Marriage?

What Might A Pre-Nuptial Agreement Do Generally?

When Is A Pre-Nuptial Agreement Appropriate?

What Might A Pre-Nuptial Agreement Do - The Specifics?

What Should Be In The Pre-Nuptial Agreement?

When Should The Parties Have The Pre-Nuptial Agreement Prepared?

Will The Pre-Nuptial Agreement Be Valid?

Why Is The Pre-Nuptial Agreement Important?

What Rights Arise From Marriage?

Some of the rights that arise from a marriage in Pennsylvania are described below.

• Property that is acquired by either spouse during the marriage is subject to certain rights by both parties.
• Under appropriate circumstances, either spouse may be entitled to support from the other spouse.
• Certain debts incurred by one spouse can become the legal obligation of the other spouse as well.
• The law classifies certain property of married persons as "marital property" that is subject to "equitable distribution" upon divorce. This means that marital property can be divided between the parties by a judge, without regard to the way the property is titled and without regard to which spouse is technically the legal owner of the property.
• Under appropriate circumstances, one spouse might be granted alimony or support in a divorce proceeding.
• Federal law also creates certain rights for spouses in retirement plans.

Each spouse has certain additional rights in the event of the death of the other spouse.

• A spouse is entitled to serve as the personal representative (administrator of the estate) of a deceased spouse.
• If a deceased spouse leaves no will, the surviving spouse is entitled to a certain share (the intestate share) of the estate. The surviving spouse's intestate share is at least one half and could be the entire estate, depending upon what other family members were living at the time of the other spouse's death.
• Even if a deceased spouse left a will, the surviving spouse is entitled to "elect" against the will and receive a minimal portion (the "elective share") of the deceased spouse's estate, that is a married person cannot completely cut off his or her spouse's share of the estate. Generally, the share is one third but the law is very complicated and the surviving spouse's precise rights can be difficult to compute under some circumstances.

What Might A Pre-Nuptial Agreement Do Generally?

These various rights and obligations described above are automatic - they exist as a result of the marriage itself. However, the intended husband and wife, by agreement, (a) can prevent some or all of these rights and obligations from coming into existence, (b) can change the nature or extent of the rights and obligations that do arise or (c) can substitute other rights and obligations for those that would have existed in the absence of the pre-nuptial agreement.

When Is A Pre-Nuptial Agreement Appropriate?

Pre-nuptial agreements are most common where at least one of the intended spouses has been married before, particularly where there are children from the former marriage. However, a pre-nuptial agreement can be used even where it is the first marriage for each spouse or where there are no children from any prior marriage. Pre-nuptial agreements are also commonly used where there is a large disparity in the financial positions of the intended spouses. For example, when a person of modest means intends to marry a very wealthy person, the wealthy person may want a pre-nuptial agreement to insure that the marriage is for love and not for money or to protect his or her family's rights in that wealth. However, a pre-nuptial agreement can be used even where the parties are of equal or nearly equal financial resources.

What Might A Pre-Nuptial Agreement Do? - The Specifics

During Lifetime

Often, in pre-nuptial agreements, the parties will agree that they may each retain the property that they owned before the marriage, free of the claims of the other spouse, even in the event of divorce or separation. The parties may agree upon what is and what is not "marital property" and may control what, if anything, is to be subject to equitable distribution by the court in a divorce proceeding. A pre-nuptial agreement may provide what happens to the marital residence in the event of separation or divorce. Who shall remain there and who is to move out? Is the house to be sold and how are the sale proceeds to be distributed? The parties may provide for specific limitations on the support that one may be required to provide to the other or may eliminate support obligations altogether. The parties may also agree to eliminate alimony and similar payment obligations.

Upon Death

Pre-nuptial agreements often address what happens upon the death of one spouse. The agreement may provide that the surviving spouse will have no right to serve as personal representative of the other spouse so that one or more of the deceased spouse's children may serve in that capacity. The agreement may provide what happens to the marital residence in the event of one spouse's death. Can the surviving spouse remain there and for how long? Is the house to be sold and how are the sale proceeds to be distributed? Where children from a former marriage or other persons in need of support are involved (for example, aged parents) or where there is a large disparity in the relative financial positions of the intended spouses, the pre-nuptial agreement often provides that one or both intended spouses give up their respective rights to receive any inheritance from the other spouse. The agreement might provide that neither spouse is entitled to inherit anything from the other spouse (other than what the other spouse voluntarily chooses to leave him or her). Alternatively, the pre-nuptial agreement might provide for specific gifts under the will or for a formula to fix the amount of the gifts or the amount of one spouse's gifts to the other under the will.

What Should Be In The Pre-Nuptial Agreement?

There is no "standard" pre-nuptial agreement. They are as varied as the desires of the parties and the creativity of the lawyers drafting them. There are no "correct" terms to include in these agreements. Rather, the agreement that is prepared should reflect the mutual desires of the parties or at least the terms that they have agreed upon even if their desires are not exactly the same. In fact, often the parties do have different desires, particularly where there are children from a former marriage or where there is a large disparity in the relative financial positions of the intended spouses. One party may simply want more than the other party wants to provide. Nevertheless, the agreement should reflect the terms that are ultimately agreed upon - whether they represent a mutually agreed upon compromise or the "best deal" that one party was able to obtain from the other party.

When Should The Parties Have The Pre-Nuptial Agreement Prepared?

Unfortunately, the suggestion of the need for a pre-nuptial agreement or the negotiation of its terms can sometimes lead to hard feelings between the parties. Generally, if the parties' relationship is a good one, the hard feelings should quickly pass but sometimes they do linger. Despite this potential problem, if the circumstances dictate the need for such an agreement, it should not be ignored in the hope that things will work themselves out. If the intended spouses cannot deal with the issues in a mature and reasonable manner, there is some question whether the passage of time will make it any less contentious. This very potential for controversy suggests that the pre-nuptial agreement be dealt with early so that any resulting hard feelings can be left behind and forgotten as the wedding date approaches. Last-minute pre-nuptial agreement negotiations or the feeling that one spouse is being coerced into signing an agreement at the last moment make poor companions to the final wedding arrangements and preparation. Leaving the problems for a future date, after the wedding, will only make them more difficult to solve and may leave one party with legal obligations that he or she neither desired nor expected.

Will The Pre-Nuptial Agreement Be Valid?

In Pennsylvania, pre-nuptial agreements have had a special status in some respects. Although the Pennsylvania courts have brought them closer to ordinary business contracts, there has been a significant distinction. In order for an ordinary business contract to be enforceable there must be (a) a meeting of the minds, (b) some legal consideration flowing between the parties (generally each side gets something and gives up something in return), (c) sufficiently definite contract terms and (d) a purpose the law recognizes as legal or legitimate. Assuming the intended spouses are in agreement and the terms of the agreement are sufficiently definite, then the law recognizes the legitimacy of pre-nuptial agreements and finds that the marriage itself supplies the legal consideration for the agreement. However, historically the courts have applied an additional requirement for this type of agreement - the party who is attempting to enforce the pre-nuptial agreement must have made full and fair disclosure to the other party of the nature and extent of his or her financial position. Under a new law that went into effect in January 2005, the burden of proof to set aside a pre-nuptial agreement is now on the party challenging the agreement. Under this new law, it should prove to be more difficult to invalidate these agreements. Nevertheless, at the time the intended spouses enter into the pre-nuptial agreement, it is still vital that each party takes the necessary steps to assure the validity of the agreement. This probably still means that each party should make full and fair disclosure to the other party. We will have to await court interpretations of the new law to determine how much more liberal the courts will be in their view of these agreements. Before entering into the agreement, the parties should first consult with their lawyers about what constitutes "adequate disclosure." This will maximize the likelihood that a court will recognize the pre-nuptial agreement as valid, if one spouse later tries to claim that it should not be enforced. If the disclosure requirement has been fulfilled, then as long as there has been no fraud, misrepresentation or duress, both spouses should be bound by the terms of their pre-nuptial agreement, just the same as with respect to any other contract.

Why Is The Pre-Nuptial Agreement Important?

For better or for worse, today many marriages are not permanent - they do not last "'til death do us part." This situation makes pre-nuptial agreements more important than ever. Although marriage is a religious, social, cultural and personal relationship involving love and affection, it is also a legal relationship. The prudent candidate for marriage, like a participant in any other legal relationship, should inform himself or herself of the bundle of rights and obligations that go along with marriage and decide whether a pre-nuptial agreement is necessary or appropriate. If the answer is "yes" or seems to be "yes", an early resolution of the pre-nuptial agreement is the best solution.

Copyright 2011-14 - Marc H. Jaffe

Note: The information set forth in this article is for general information purposes only and is not intended as legal advice. You should consult a lawyer in the state where you live or the state where you intend to reside or be married, and rely on the advice of that lawyer rather than upon anything set forth above.