A premarital agreement is a contract between prospective spouses that determines their financial rights and obligations when the marriage ends at death or divorce. Such an agreement can be useful for anyone considering marriage who wants to decide in advance about the ownership and control of assets, provide for children and other family members, or have the right to continue plans for charitable giving.
A premarital agreement can be appropriate in a number of situations. For example, it can be useful for a person contemplating a second marriage who has significant assets he or she wishes to preserve, or who wants to have the right to reserve assets for children from a prior marriage, or who is entering marriage as the owner of a business. Even younger couples entering into first marriages may consider a premarital agreement, particularly when there is a future inheritance or substantial premarital assets to which he or she wants to retain exclusive rights. Same-sex partners, whether entering into marriage or not, may wish to have an agreement that addresses the same kinds of issues and concerns.
We can tailor a premarital agreement to the needs, values and wishes of our client. Our goal is always to protect the financial interests of our client, but to do so in a way that fosters respect for the couple’s personal relationship.
In counseling clients considering a premarital agreement, we can also offer other options to protect nonmarital assets and income.
Our attorneys are among the best known nationwide in drafting and enforcing premarital and domestic partnership agreements. Two of our partners have written comprehensive books on the subject. Our attorneys can negotiate and draft an agreement in even the most complex circumstances.
A marital agreement can take the form of a premarital agreement, a postmarital agreement, or a separation agreement, i.e., an agreement that settles property rights (and other issues) between parties who intend to divorce. A marital agreement may provide for the disposition of assets at death; it may require one or both parties to provide for the other or a child at death after divorce; or it may waive rights at death. When the terms of a marital agreement and a beneficiary designation conflict with each other, the law will either validate or annul the designation, depending on the jurisdiction, the type of asset, and the language of the marital agreement.
The District of Columbia, Virginia, and Maryland all have laws that revoke at divorce either the entire will or the portions benefitting a… MORE >
The Tax Cuts and Jobs Act has eliminated the tax treatment of alimony that has been in place for more than 75 years. Under the old law, alimony is deductible from the income of the payor and includible in the income of the recipient, provided the parties comply with the specific requirements of the Internal Revenue Code (I.R.C.). Effective January 1, 2019, under the Tax Cuts and Jobs Act, parties will no longer have the option to enter into an agreement for taxable alimony nor will court-ordered alimony be deductible from the payor’s income and includible in the recipient’s income. Some alimony obligations created prior to January 1, 2019, may receive alimony tax treatment under the old law; others may not.
An existing premarital agreement… MORE >
A premarital agreement is a contract between persons intending to marry. It determines spousal rights when the marriage ends by death or dissolution. All states enforce properly made premarital agreements. However, laws governing validity vary among the states. What if a couple signs a premarital agreement in Virginia and later moves to Maryland? Will a Maryland court enforce the agreement even though Maryland law of validity imposes a higher standard than Virginia law?
Contract law permits the premarital agreement to choose the law that will govern a dispute about validity of the agreement or enforceability of a specific provision even when the dispute must be resolved in another state’s courts. Can the couple rest easy, knowing the law chosen in the contract—Virginia law in the… MORE >
Jan White and Linda Ravdin were named yet again on Washingtonian’s list of Washington’s Top Divorce Lawyers. Congratulations, Linda and Jan!
“My daughter is getting married. Does she need a premarital agreement?”
Estate planning attorneys hear this question more and more frequently – generally from clients concerned about the assets they plan to leave their children. Numerous wealth transfer predictions estimate that trillions of dollars will pass over the next decade from a generation that earned the money to their children who did not earn it. Parents (and grandparents) may want to assure that the inheritance the child receives, whether cash, real estate, a stock portfolio or an interest in a family business, will be stewarded carefully. Parents usually hope that the inherited assets will ultimately pass at the child’s death to the child’s children or grandchildren rather than to a child’s surviving spouse, however… MORE >
Premarital agreements get a bad rap for being anti-romantic, anti-relationship and getting a marriage off to a bad start. If they are done right, nothing could be further from the truth.
The Collaborative Process has gained traction in the last decade as a respectful way for couples to settle their divorce issues outside of court. Less attention has been given to how couples about to embark on marriage can use the Collaborative Process to develop a premarital agreement. Clients can benefit greatly if attorneys take note of how well the Collaborative Process fits this situation. In the Collaborative Process, the couple make their own decisions, staying together in the same room to discuss options to resolve their issues. They are guided in their discussions by… MORE >
Alternative dispute resolution embraces a variety of processes designed to resolve legal disputes outside of a formal court proceeding. One such option is binding arbitration. In binding arbitration a neutral decision-maker, who could be a retired judge or a lawyer with expertise in the subject matter of the dispute, is appointed make a decision to resolve a legal dispute. Arbitration has been used for many years to resolve commercial, construction, labor, and many other types of legal disputes. It is rare in the family law arena, but that could change.
The Uniform Law Commission (ULC) is currently working on a Uniform Family Law Arbitration Act (the UFLAA). It will be presented to the Commission at its annual meeting in the summer of 2016. If the… MORE >
Baby boomers born between 1946 and 1964 make up a large part of the aging population. With longer life expectancies, many boomers are working well into their golden years with no plans to retire. Some may be too optimistic about their future health and prefer not to think about retirement. The cost of future health care may create a financial burden for many families, especially older couples whose income stream is reduced after retirement. Many older couples contemplating marriage decide to enter into a premarital agreement. A premarital agreement allows a couple to predetermine property and financial issues during marriage, upon the death of a spouse or in the event of divorce. In negotiating the terms of a premarital agreement, couples should consider their potential… MORE >
A premarital agreement is a contract between prospective spouses that defines each spouse’s property rights and obligations in the event of death or dissolution. A postmarital agreement is a contract between spouses who have no immediate plans to divorce and can do the same things that a premarital agreement can do. Some agreements require a party to make specific provisions for a surviving spouse, such as a cash bequest, transfer of an asset, such as a home, or a portion of the deceased spouse’s estate. When a deceased spouse is obligated to make provisions for a surviving spouse, and fails to do so, the surviving spouse must take legal action to enforce the contract.
How Assets Pass to Surviving Spouses at Death
A decedent’s property… MORE >
This article was originally published in the American Bar Association’s Family Advocate, Vol. 38, No. 2, (Fall 2015) p. 10-13, and is reprinted here with permission. PDF available here.
Adequate financial disclosure is essential to a valid and enforceable premarital agreement. When one party is the beneficiary of a third-party trust or the settlor of his or her own trust, the existence, key terms, and value of trust assets will necessarily figure into that disclosure. Even if a trust does not already exist, the parties may wish to incorporate one or more trusts into their premarital agreement terms.
Disclosure of existing trusts
The proponent of a premarital agreement will achieve maximum protection of property rights if financial disclosure is substantial, accurate, and meaningful—in other words, if it exceeds the minimum… MORE >