Estate Planning

Prenuptial Agreements:  Enforceability

People who plan to marry for the second time or late in life frequently question whether they should have a Prenuptial Agreement.  This is a difficult question.No attorney can guarantee that a Prenuptial Agreement will be enforceable in the future.The inescapable fact of all Prenuptial Agreements is that they are created at one point in time by the parties to be fair and equitable at that time.But the agreements are judged for enforceability at a later time in a completely different setting by a completely different party: a judge.That judge then exercises his or her independent judgment to determine, in hindsight, whether the agreement was fair and equitable at the time it was created and signed. Obviously, this is a very subjective determination and one that is impossible to predict with accuracy.

In addition to the subjectivity which makes the enforcement of any Prenuptial Agreement unpredictable, the reviewing judge will have to engage in a two-step analysis.The Prenuptial Agreement will be enforceable if the judge finds that the Agreement makes fair and reasonable provision for the party not seeking enforcement. Some of the factors the judge considers are: the proportionate means of each party, restrictions on the creation of community property, prohibitions on the distribution of separate property upon dissolution, preclusion of common law and statutory rights to both community and separate property upon dissolution, limitations on inheritance, prohibitions on awards of maintenance, and limitations on the accumulation of separate property.

If the judge concludes the Prenuptial Agreement is fair and equitable, then the Agreement is enforceable. If the judge concludes that the Prenuptial Agreement is unfair, it may still be enforceable, but only if the judge finds that it was executed with appropriate procedural safeguards.The judge will examine whether the parties made full disclosure of the amount, character, and value of the property involved.The judge will also look at whether the parties entered the agreement voluntarily with independent advice and with full knowledge of their rights. If the judge finds the Prenuptial Agreement was procedurally fair, the judge may enforce the Agreement even if it finds it to be substantively unfair.

As you can see, whether or not a Prenuptial Agreement will be enforceable is a difficult question.The issues are complex, so please feel free to contact me if you have any questions or desire to enter into a Prenuptial Agreement.  

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