Antenuptial Agreement

Definition of "Antenuptial agreement"

Written by

Brian Miller

The Eakin Group

An antenuptial agreement is, as the terms composition states, an agreement that happens before the nuptials, or, in other words, the wedding. The antenuptial agreement is more commonly known as a prenuptial agreement or prenup, and it refers to a contract written and signed by two people who intend to get married. Through an antenuptial agreement, it is established what the rights of each of the spouses are and how a divorce will impact the couple’s property or assets. 

While a will determines the division of the estate and the beneficiaries, an antenuptial agreement can be used as an addition to the will, addressing some issues that the will might not cover. However, its main use is to establish how assets will be distributed in the event of a divorce.

What is an Antenuptial Agreement?

Unlike a will, an antenuptial agreement can only take effect if the two individuals writing it up, get married. While making a will is important, for married couples, an antenuptial agreement deals with real estate properties and works to distribute assets and liabilities in case of a divorce, as mentioned above, but also in case of death of one of the spouses. Additionally, unlike a will, an antenuptial agreement works for both spouses. It is one contract, not two, that is made for the couple. 

The basic function of an antenuptial agreement is to protect the pre-marital assets of one or both individuals. It also works for assets that one of the spouses might have from a previous marriage, making sure that, if there are any children from a previous marriage, they maintain their interest in those assets.

How does an Antenuptial Agreement Work?

Before the two parties enter into marital life, where they most likely mingle their assets, an antenuptial agreement can outline what assets are considered separate assets from the marital assets. This ensures that even if an asset is used by both spouses during the marriage, upon divorce, the asset will return to the spouse that owned it before the wedding.

If a couple decides to enter into an antenuptial agreement, the division of assets is simplified in case of divorce. Understanding how an antenuptial agreement works is relevant in this day and age with divorce rates increasing. Considering that the antenuptial agreement was correctly drafted with the help of a lawyer and signed by both parties, any assets owned by each individual spouse before marriage, if specified, will return under their sole ownership after the divorce.

Antenuptial Agreement Misconceptions 

We mentioned previously that an antenuptial agreement determines the rights of spouses and asset division in case of divorce, however, delegating duties is not something that a prenup can do. If an antenuptial agreement specifies who does what in the marriage, how often, and for how long, these aren’t things that can be quantified or enforced.

If the signing of an antenuptial agreement is enforced on one of the parties, the court can label it as invalid and disregard everything it specifies. As one of the most common reasons for antenuptial agreements is the desire to maintain control of the assets by the party with significant assets. Antenuptial agreements were given a bad reputation by the media when they are perfectly reasonable. 

A good tip for antenuptial agreements is to make up a draft and sign it before the wedding invitations are sent. In case one of the parties is against it, deliberation can start from there. Each party can take that draft to their individual lawyer to ensure that the agreement is fair to both parties. The signing of the agreement has to be executed correctly and witnessed, otherwise it can be invalidated by the court.