Prenuptial vs. Postnuptial Agreements: What’s the Difference Between These Two Types of Agreements, and Which One is Right For Me?
Posted on November 25, 2024 by Faye Washburn
It is becoming increasingly more common for modern couples, either before or during their marriage, to execute a written legal contract with the goal of protecting the separate interests of either partner in case of divorce, legal separation, or death. A prenuptial agreement or “prenup” is a legal contract that is signed before marriage. A postnuptial agreement or “postnup” is a legal contract that is signed after marriage.
Both types of agreements serve similar purposes but are used at very different stages of a relationship. Understanding the key differences between the two can help you make an informed decision about which agreement is best for you and your partner, depending on the stage of life and the relationship that you are in.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract entered into by a couple before they get married. Prenup’s outline how property, assets, and debts will be divided in the event of legal separation, divorce, or death. In addition to the division of assets, prenuptial agreements can address issues such as spousal support (alimony), inheritance rights, and individual responsibility for debts. Prenups can also clarify party expectations about finances during the marriage, due to the requirement for a full financial disclosure prior to execution.
What is a Postnuptial Agreement?
A postnuptial agreement is similar to a prenup, with the key difference being that it is executed after a couple has already gotten legally married. Some couples opt to execute a postnuptial agreement shortly after their marriage ceremony because the excitement and stress of wedding planning can get in the way of negotiating and executing a legal agreement. On the other hand, some couples execute a postnuptial agreement many years into their marriage, sometimes after a couple has experienced a major life event or financial change that they did not consider prior to getting married. Sometimes couples execute a posnup to address financial insecurities that might otherwise result in a divorce.
Which agreement is right for me?
Timing is everything in terms of the selection, planning, and execution of both pre- and postnuptial agreements. If you are contemplating marriage with your spouse and are in the 6-12 month period before your wedding, you are on the right track for being able to successfully negotiate, draft, and sign a prenuptial agreement before your wedding. Some states, such as California, have strict time limits for when a prenuptial agreement can be executed (known as the 7-day rule), prior to the date of the wedding. In Washington the time limit is not exact, but there is a requirement that the agreement be executed voluntarily, with substantive and/or procedural fairness. There is also a requirement that couples fully disclose all of their assets, debts, and income prior to execution. A postnuptial agreement has the same requirements for voluntary execution, fairness, and disclosure, but affords couples the flexibility of being executed at any point after they have married.
If you are entering into a marriage with significant assets, business interests, or anticipated inheritance, a prenup can help protect your interests. Additionally, if you live in a Community Property state, such as Washington or California, and wish to avoid the default rules on the division of assets upon divorce, a pre- or postnuptial agreement can contract for that deviation.
Conclusion
Whether you are planning for the future of your relationship prior to getting married, or reassessing the financial circumstances surrounding your marriage, consulting with an experienced attorney can ensure that your agreement, whether pre- or postnuptial, is well-executed, and best protects your interests. If you have questions about what sort of agreement is best for you and your fiancé or spouse, contact a family law or estate planning attorney at Lasher Holzapfel Sperry & Ebberson, PLLC.
