Marriage contracts are typically entered into prior to the marriage, hence the term ‘pre’nuptial.  However, they can also be signed or amended at any time during the marriage.  Marriage contracts are extremely beneficial for comprehensive estate planning which includes death succession, not just a possible divorce.

You cannot gift more to your surviving spouse via your Will than in the marriage contract, unless the contract states that you can do so.  Typically, the Will states that the testator is a party to a marriage contract already in existence, citing the marriage contract by its date.

Today, many people have had multiple marriages, have complicated financial lives, properties, children, grandchildren and perhaps even dependents that need constant care.  It is not a lack of love or future commitment to your new partner, but rather your conscious need to set out the manner in which your finances and property will be shared or divided in the event of divorce or death; based on your wishes and intentions, not on state law.

Marriage contracts are limited in their scope and to be valid and enforceable, the spouses must have made full and complete disclosure of all their assets and the values, including trust interest and all debts and liabilities.  It is also prudent to obtain a certificate of independent legal advice so that the marriage contract is less vulnerable to challenge and to being set aside by the court.  Of course, it goes without saying that you must have this done with your lawyer and for the benefit of all parties, really should be signed well in advance of the date of the wedding.

Christine’s Tip:

To protect clients, I am much more interested in what is to happen in the event of a spouse’s death rather than a divorce.  Remember that a new marriage contract must be aligned with your Will to ensure both documents are “in sync.”  You see, marriage contracts can, and often do, override Wills.