Premarital Agreements

Benefits of a Premarital (or Prenuptial) Agreement

An agreement can:

  • protect you from community property claims
  • clarify what is community property and what is separate property
  • support your estate plan
  • reduce conflicts and save money if you divorce, and
  • clarify special agreements between you.

In addition, though not a pleasant subject, discussing such an agreement may actually strengthen your relationship. While people often imagine that these negotiations are potentially divisive, communicating about money matters can actually improve the quality of your relationship and support good communication in your marriage. After all, sooner or later you will be talking about money. If you think you can handle it, most psychologists and legal experts would tell you there's no time like the present.

You May Not Need An Agreement

You should know, however, that California community property law may already accomplish what you want. In California, assets accumulated during marriage are generally community property that is owned fifty-fifty. Separate property, by contrast, includes not only assets owned before marriage, but also gifts and inheritance acquired during marriage. If protecting separate property is your main goal — as opposed to limiting community property claims — you may not need an agreement. Still, you'll want to be sure that you're not facing any special circumstances where state law is unclear.

Timing Questions

Entering a premarital agreement presents delicate questions of timing:

  • It forces you to confront many of these issues at a time when your relationship may still be new and untested. Discussing it could be unpleasant and stressful, leaving one of you with bad feelings about the relationship.

  • If now is not the time to make a written agreement, you may be able to make a contract after you marry; but be advised that post-marital agreements have their own disadvantages, including stricter legal rules.

  • Whatever you decide, there are serious risks in waiting to enter a premarital agreement at the last minute or in haste: a last-minute agreement may be invalid because it was made under duress; and a hasty agreement may be invalid because one party lacked sufficient time to make a knowing and informed agreement.

Importance of Separate, Independent Legal Advice

Having independent lawyers advise each of you can be critical in order for your agreement to be legally enforceable. Separate, independent advice for each party goes a long way to protecting an agreement from legal challenge, and one formed without such advice is always a red flag to a judge. On a practical note, having separate legal advisers can help you and your fiance craft a lasting agreement that you both understand and that doesn't leave either of you feeling that you've been taken advantage of.

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