Following is a summary of issues and questions related to the drafting of a prenuptial agreement. This is only a summary of the main issues involved in such an agreement. More discussion and elaboration will be required; this issue survey is intended for use in preparing you to speak with your intended spouse and estate planning professional regarding your desires.

  1. Timing of Agreement. In order to be enforceable, the prenuptial agreement needs to be completed well in advance of the prospective marriage date.

  2. Full Disclosure. In order to be enforceable, a prenuptial agreement requires that each spouse disclose to the other all of his or her assets with approximate fair market values. In addition, a current tax return should be provided to the prospective spouse.

  3. Legal Counsel. In order to be enforceable, a prenuptial agreement requires that each spouse have the benefit of separate legal counsel in reviewing a prenuptial agreement draft.

  4. Children from Prior Marriages. Each spouse needs to disclose to the other his or her children from prior marriages and any legal obligations to such children.

  5. Separate Property. Each spouse will bring separate assets to the marriage. Are those separate assets intended to be kept separate, free from any obligation to share such assets with the other spouse?

  6. Jointly Acquired Assets. If after the marriage assets are acquired in the name of both spouses, is such acquisition intended to pass title to the surviving spouse in the event of the death of one spouse, or will the decedent spouse’s estate be entitled to his or her one-half share?

  7. Residence. How will the principal residence be owned? Half by each spouse, with a right of survivorship, or something else? If the residence is not owned jointly with right of survivorship, on the death of one spouse, will the surviving spouse be entitled to live in the residence for his or her lifetime? If so, will there be a rental obligation or other obligation concerning the maintenance of the property?

  8. Gifts Between the Parties. If gifts are made by one spouse to the other, will those gifts carry any sort of obligation, or will they simply become the property of the recipient spouse?

  9. Gifts from Third Parties. Will gifts from third parties to one spouse be deemed the separate property of the recipient spouse or will there be an obligation to share the gift with the other spouse?

  10. Income and Tax Returns. What will be the character of income earned by each spouse during the term of the marriage? Will it be considered joint income, or only income of the spouse to whom it is attributed? Will the spouses file joint income tax returns? If so, how will the obligation of tax payment be allocated?

  11. Death of a Spouse. On the death of one spouse, will the surviving spouse be legally entitled to share in the decedent spouse’s estate?

  12. Alimony After Divorce. In the event of a divorce or separation, will either spouse be entitled to seek alimony from the other spouse?

  13. Property Settlement After Divorce. In the event of a divorce, will either spouse be entitled to receive a property settlement from the other spouse?