There are two main reasons someone might consider a prenuptial agreement (prenup), in the case of death and in the case of divorce. Some people believe they need or want one, but, after careful consideration, decide they do not. Others discover they really should have one. An attorney can explain all of the important points in more detail.

You first need to understand what happens if you don’t have a prenup.

Death

If there is no prenup, Kentucky law has a plan for who receives your property when you die. The rules differ depending on whether you have a will or not. Under either scenario, your surviving spouse is entitled to a significant share of your property. This could be true even if you were married to the surviving spouse for only one week!

Results altered by prenup. The above could seem to some to be very “unfair” results, especially if there are children from a previous relationship, or someone has accumulated a lot of assets. Even if there are no children to consider or there are not substantial assets, some people like to use a prenup to retain control over who gets their assets when they pass on. A prenuptial agreement might allow you to draft around those obligations and create a much more “fair” solution.

Divorce

Without a prenup, in general, all property acquired between the date of marriage and date of divorce is marital and can be divided in “just proportions” per Kentucky statute. While not explicitly stated anywhere, the reality is that this often, but not always, means 50-50 (of course there are some other factors that come into play). There are exceptions to the division of those assets accumulated during the marriage, and the exceptions are considered non-marital assets, which are not divided between the spouses when they divorce, such as certain inheritances or gifts. Sometimes these can be hard to prove (most people getting married do not have a file where they retain documents they might need in a divorce). The burden is on the person trying to claim an item is nonmarital to come up with that proof.

Results altered by prenup. In essence, with a prenup, people are drafting their divorce agreement before they even get married. One way a prenup can be beneficial is with respect to income. Without the prenup, in general, all assets purchased during the marriage are marital and divided. But what if one person makes far less than the other, so, the assets accumulated are mainly from one person’s earnings? Or what if one person is a spender and the other is a saver?

A prenup can carve out an exception that income earned during the marriage and the assets that income purchases is treated as nonmarital property, and so are not divided.

Prenuptial agreements generally do not address “child-related issues” such as custody, timesharing, child support etc.

So who benefits most from a prenuptial agreement?

Some examples

• The couple marrying with children from previous relationships.


• The couple where one party expects a higher income stream (or already has one) and does not want to divide the property accumulated as a result of that better income stream.


• Someone who inherits a business built up by previous family members.


• People who simply want to retain options.


• People with concerns about the other person’s spending or debt issues.


• People who are skittish after previous divorce(s).

Post-nuptial agreements

In general, they are like prenups except for the timing, because they are executed after the marriage. These can be ideal for people whose situation has changed and the terms of their prenup are no longer beneficial, or maybe they did not have a prenup and now want one.

Some examples

• Kids are now adults


• Marriage is now “longterm” and terms of prenup would be punitive


• Certain property has been acquired and current terms do not address how they want to handle new property or property has been gotten rid of


• Want to change, add or get rid of certain terms in earlier prenup that are now obsolete