General Purpose. A "premarital agreement" or "prenuptial agreement" is "an agreement between prospective spouses made in contemplation of marriage and is to be effective upon marriage." Uniform Prenuptial Agreement Act, prefatory notes. Therefore, to use this form, the parties must be contemplating marriage (i.e., this form does not work for couples already married). Most couples enter into these agreements to fix their rights to property owned by each both before and during the marriage. Generally, the allowed subjects of a prenuptial agreement are as follows:

1. The rights and obligations of each of the parties in property of either or both, whether acquired before or after the marriage;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, control, manage, or create a mortgage or encumbrance upon property of the parties;
3. The disposition of property upon separation, marital dissolution, or death;
4. The modification or elimination of alimony (also known as "spousal support"), but please note that prenuptial agreements may not affect the right of either party to receive child support under state law;
5. The rights of either party under a will or trust created by the other party;
6. The ownership rights in and disposition of the death benefit from a life insurance policy; and
7. The choice of which state's law shall govern construction of the agreement.

Waiver of claim to estate of deceased spouse. Our prenuptial agreement template gives the user the following two options in regard to the estate of a deceased spouse: (a) both parties waives any claims they may possess against the probate estate of the other or (b) the parties do NOT waive claims they may possess against the probate estate of the other party.

• If option (a) is selected, the template language waives all rights and claims against the estate of the deceased spouse by the surviving spouse include those as an omitted spouse or under the intestate succession laws of the applicable jurisdiction. Nothing in this paragraph shall be construed as restricting the ability of a surviving spouse to be a beneficiary of the deceased spouse as a named beneficiary under a valid last will executed by said deceased spouse, nor does this paragraph waive the right of surviving spouse to make a claim against the estate of deceased spouse as a creditor, a claimant for breach of contract, a tort claimant, or to dispute the ownership of property also claimed by the estate.

Note involving California. Although California has enacted the Uniform Premarital Agreement Act, it's version of the law makes it very difficult for individuals unrepresented by attorneys (at the time the agreement is entered into) to enforce a premarital agreement. It also mandates a seven day waiting period between the time the agreement is first presented to a party and the time it is actually signed. Click here for more information.

Another issue with California premarital agreements is whether the parties to an agreement may limit spousal support (also called "alimony") in a subsequent divorce. In the case of Pendleton v. Fineman, S.Ct. Cali. 8/21/00, the Supreme Court of California held that the validity of waivers of spousal support in prenuptial agreements was left to the courts by the legislature and, furthermore, that such agreements are not automatically void as against public policy. The bottom line is that waivers of spousal support are legal in California; however, they are closely reviewed by the courts to ensure that neither side obtained an unfair advantage over the other. If you desire additional assurance that your agreement will be enforced by the courts on the issue alimony in California, we recommend that both parties have the agreement reviewed by separate attorneys prior to signing.

Court's Opinion in Pendleton v. Fineman, S.Ct. Cali. 8/21/00

Are these agreements legally enforceable? In the vast majority of states, the answer is "Yes" (see above note for California); however, there are qualifications as certain factors can cause a properly drawn prenuptial agreement to, nevertheless, go unenforced by the courts. Two important factors which cause the courts to scrutinize prenuptial agreements even closer are: (a) the agreement is execute very close in time to the wedding or (b) one party does not disclose all of his or her assets (or gives improper values) to the other party. If you are actually signing the agreement close in time to the wedding but have discussed the topic and agreed it should be done well in advance of the wedding, this should help the situation.

Also, under the Uniform Prenuptial Agreement Act which has been passed by 27 states, a court may determine a prenuptial agreement to be unenforceable in two instances:

(a) The party seeking to avoid the agreement did not voluntarily execute it (i.e., one party signed under duress); or

(b) The agreement was "unconscionable" when it was executed and the party seeking to avoid the agreement:

1. was not provided fair and reasonable disclosure of the other party's property or debts;
2. did not waiving in writing the right to proper financial disclosure; and
3. did not have, or could not have had, an adequate knowledge of the other party's property or debts separate and apart from disclosure made by this other party.

The legal term "unconscionable", although defying precise definition, is a standard whereby the court determines if the agreement was so one-sided, or unfair that it should not be enforced in the interest of justice. "In order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including knowledge of the other party." Comments to Section 6, Uniform Premarital Agreement Act.

Generally, the situations that weaken the case for enforcement of a prenuptial agreement are: (1) if it is signed close in time to the wedding (i.e., within a few days which may indicate that the decision was rushed), (2) one side was represented by an attorney while the other side was not, (3) both parties were represented by the same attorney, (4) failure of one party to fully and accurately disclose all assets and debts, and (5) the agreement is patently unfair to one party or another.

The strongest case for enforcement of a prenuptial agreement is made when both parties are represented by separate attorney at the time they sign the document. Therefore, by using our product without hiring two attorneys (one for each party), you are making a decision that the cost savings is more important to you than the added protection the agreement may have with advice of counsel for both parties should one party later try to avoid the agreement. Although we spent many hours crafting an agreement that we believe faithfully follows the prevailing laws in the states regarding these agreements, MedLawPlus.com, Inc. makes no guaranty of the enforceability of prenuptial agreements created using our forms system.

In states other than those that have enacted the uniform act, one is forced to search through the case law, which can change daily, to determine what the law is and, for this reason, no solid statement can be made regarding the enforceability of prenuptial agreements. For a short description of whether a given state other than the 27 listed below has a statute covering prenuptial agreements, please click here.

For additional information, the following are links to legal sites covering the topic of premarital agreements:

"Prenuptial Agreements, The Basics" from Bankrate.com;

"Frequently Asked Questions: The Prenuptial Agreement" by Elayne B. Kesselman, Esq.;

"To Have and to Hold, Most premarital agreements are binding and enforceable" by Peter M. Walzer;

Pros and Cons of Prenuptial Agreements, About.com.