Should you have a Pre-nuptial Agreement

Should you have a Pre-nuptial Agreement?

A little boy asked his father, "Daddy, how much does it cost to get married?"
And the father replied, "I don't know, son, I'm still paying for it."

Should you have a marriage contract?  It's a misleading question, as pointed out by the National Resource Center for Consumers of Legal Services.  The fact is, if you're married, you already have a marriage contract.  Your marriage contract consists of the obligations imposed on married couples by the inheritance and domestic relations laws of the state where you reside.   Romantic or not, there is a marriage contract.  The only question whether you like the "one size fits all" marriage contract provided by the state or whether you want to substitute your own contract.

People routinely change the state law provisions for inheritance rights for married couples - they write wills, often giving the entire estate to the surviving spouse.  This
is common, socially acceptable, and even encouraged. Marriage contracts and pre-nuptial agreements settling other property rights, however, are still uncommon.

Not that marriage contracts haven't been around for thousands of years, mind you.  Just imagine the tribal chief striking a deal with the neighboring chieftain over the dowry to be given with the bride.

My personal favorite is the Jewish marriage contract or Ketubah which has been in use for centuries B.C.E. to the present day.  "Be  my wife in accordance with the law of Moses and Israel. I will work for you; I will honor, support and maintain you, as it becomes Jewish husbands who work for their wives, honoring and supporting them faithfully...."  Additionally, the Ketubah (1) outlines the obligations that a husband must fulfill in marriage -- to honor his wife, to provide the necessities in life, such as food, clothing, and shelter, and to fulfill his wife's sexual needs; and (2) it specifies that he will pay his wife a particular
sum of money in the event of death or divorce.   Not bad.

As an example, here is how this works in the State of Pennsylvania: The provisions regarding property division and financial obligations for married persons living in Pennsylvania include a duty for each spouse to support the other.  There is a duty to support children born of the marriage.  In Pennsylvania, the surviving spouse has a right to inherit one-third (1/3) of the deceased spouse's estate.  Other states have different, but similar laws.  Each spouse has a right to an equitable distribution of property on divorce.  The law provides for alimony and for child support. There is no duty to provide an inheritance for children.     Are you content with  this deal?   Personally, I have a problem with only getting 1/3 of my husband's estate.  Do you think you should be entitled to more of your spouse's estate?

By making a pre-nuptial or post-nuptial agreement (both of them are marriage contacts) the parties can modify the property
rights granted to married people by the state.

The contract can be more generous than state law, or more limiting than state law - all as negotiated by the parties.

The law aims at the usual case.  It provides one set of rules and a one size fits all approach. Legislators, in passing statutes about such matters, hope to strike a balance which will address most situations.  Obviously, there are many differences and variations in the real world.  That is why the law permits spouses to contract with each other, to modify the "usual" rule to suit their particular circumstances.

Some public policy critics have proposed that several different "marriage contracts" should be defined and one selected when the marriage license is applied for.   This would force the soon-to-be-married couple to focus on the contract they are making with regard to property and support.  These proposals are criticized as being too burdensome and costly - imposing a need for counsel and negotiation just to apply for a
marriage license (Is that such a bad thing?)

One of the most common situations where a prenuptial agreement is important when one or both spouses have children from a prior marriage.

Many folks in this situation want to make sure that the children from the prior marriage retain rights in property, rather than giving the new spouse rights that supercede the children's.  By the same token, these spouses want to provide for each other appropriately.  The law is not designed to handle this situation.  Under the law, the new spouse is given the same rights that the first spouse had, which may not be appropriate because the new spouse is not the parent of the children.  Entering into a contract with regard to these issues should not be viewed as a lack of trust or commitment to the new spouse.  Rather, it shows responsible concern for the welfare of both the current spouse and the children. No one is served by creating enmity between the children of the first marriage and the new spouse.  A
prenuptial agreement can go a long way to smoothing the foundation for this new pattern of relationships.

Prenuptial Agreements can be, and often are, amended.  After the marriage, in view of changed circumstances, the spouses are free to revise and amend the agreement made before the marriage. These contacts usually establish minimum requirements as a protection to the spouses, the husband and wife are always free to be more generous with each other.

Patti S. Spencer, Esq., is a nationally recognized trusts and estates attorney and author. Her areas of concentration include trusts, estate administration, estate settlement, estate planning, inheritance tax, and tax planning. She is the founder of Spencer Law Firm in Lancaster, Pennsylvania, and a Fellow of the American College of Trust and Estate Counsel (ACTEC). Before founding Spencer Law Firm in 1996, Ms. Spencer was the head of the Personal Trust Department at a regional Pennsylvania bank.

Ms. Spencer is the author of "
Pennsylvania Estate Planning, Wills and Trusts Library: Forms and Practice Manual," (Data Trace, 2007), "Your Estate Matters," (AuthorHouse, 2005), and a weekly column entitled "Taxing Matters," published in the Lancaster Intelligencer Journal. She holds an LL.M. post-graduate law degree in Taxation from Boston University School of Law and is a member of both the Pennsylvania and Massachusetts Bars. Ms. Spencer can be reached at patti@spencerlawfirm.com or 717-394-1131. Learn more at www.spencerlawfirm.com.