What’s in a Prenup Checklist?

Lately, more and more couples are adding prenuptial agreements to their wedding planning “to-do” lists.

In between wedding cake tastings and formalwear fittings, newly engaged couples are meeting with family law attorneys. As requests for prenups continue to surge, we’re getting a lot of questions about what can and can’t be included in this legally binding agreement. Here’s a rundown of what a prenup protects. 

Premarital Assets - Regardless of income level or net worth, each partner enters into a marriage with assets of their own. Premarital assets include your cash accounts, retirement savings, real estate, business interests, intellectual property and so on. Moreover, in this entrepreneurial and “gig” economy, people who don’t consider themselves “wealthy” still have assets they want to protect. 

Financial Assets - A subset of premarital assets, financial assets include retirement plans, bank accounts, investment portfolios, crypto, insurance policies, notes receivable, security deposits and so on. The longer a couple is married, the more co-mingled their financial assets tend to be, and the more important it is to outline how those assets should be shared in the event of a split. 

Inheritances - The law provides that inheritances are the receiving party’s separate property, no matter when acquired. This is great! But, that’s not all. The rub is what happens when you use all or a portion of your inheritance to purchase a (drum roll…) marital asset. You can end up having to share half of that contributed inheritance with your STBX (soon-to-be-ex) spouse. 

Real Estate - Real estate is one of the most common assets in a prenup. If you purchase a home during the marriage, what happens to the home in case of a split? Do you sell it and share the proceeds, or does one person keep the home but “pay out” the other? In New York State, no matter who holds title to the property, if it is purchased during the marriage then it is presumed to be marital property. These are issues a prenup can resolve in advance. 

Salary and Future Earnings - A prenuptial agreement can protect each person’s current salary, as well as future potential earnings. For example, if part of your compensation includes salary + bonus, or even better, incentive compensation with a vesting schedule, you may want to memorialize in advance how that income should be treated and whether your spouse should be entitled to a chunk of it in the event of a divorce.

Credit/Debt - Assets are not the only thing you inherit in a marriage. You can also be responsible for part of your spouse’s debt in a divorce. A prenup can outline the payment arrangements for student loans, credit card debt, or business obligations.

Pets - Yes, pet custody can be outlined in a prenup. Whether it’s a beloved pet you had long before meeting your partner, or a pet you adopted together after your wedding, you can specify who gets full or partial custody of a fur baby. 

What’s not included: Child custody arrangements and child support amounts can not be included in a prenup - these considerations are managed separately at the time of divorce. Day-to-day preferences like who does what chores or which side of the family a couple spends holidays with are also not enforceable in a prenup. These are just two examples of what’s not covered, and it’s important to speak with a knowledgeable family law attorney about your specific situation. 

As a family law practice, we’re thrilled to see more couples making the smart move to protect their assets and their futures! 

At Artese Zandri, we help couples draft prenuptial agreements that leave both parties feeling empowered and protected. If you or someone you know is considering a prenup, reach out to us for a complimentary consultation atconsultation@artesezandri.com.