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Has Your Premarital Agreement Gone Stale? Freshen It Up
Posted in Estate Planning

Lawyers will often advise clients getting married of the advantages that a premarital agreement can offer. However, less often will lawyers render equally important advice to clients who are currently married – and who already have a premarital agreement – to consider amending the document during the marriage. There are at least four compelling reasons to amend a premarital agreement.

  1. Remove poorly-drafted or ambiguous language First, as any divorce lawyer can attest, many of the premarital agreements that surface at the end of a marriage are poorly or ambiguously drafted. Perhaps this was an inherent problem with the original draft, or perhaps the client's financial or life circumstances changed significantly during the marriage, rendering the premarital agreement stale. In either case, a well-drafted and properly executed amendment can usually correct the shortcomings of the original.
  2. Take advantage of hindsight Next, the parties, with the benefit of hindsight, may believe that the substantive terms of the original premarital agreement are no longer fair or appropriate, say, because it would leave one spouse with too little (or too much) property at the conclusion of what has proven itself to be a lengthy marriage. Amending a premarital agreement allows the parties to reshape the terms of the premarital agreement to reflect their current circumstances, instead of those that existed before they married.
  3. Create harmony among estate plans Third, many people with premarital agreements do not realize that these agreements are used to divide property not just in the event of divorce, but also in the event of death. As such, a premarital agreement is also a component of the client's estate planning portfolio. Because of this, just as with wills, trusts and other estate planning documents, premarital agreements should be carefully reviewed periodically to ensure optimal conformity with prevailing tax and succession laws, as well as harmony with the client's other estate planning wishes.
  4. Harness the strength of amendments Finally, any premarital agreement – even a well-drafted one – can be subject to attack when the marriage concludes. Amending a premarital agreement can strengthen the validity and enforceability of the original because, as part of the amendment process, both parties reaffirm the fairness and propriety of the original premarital agreement and the circumstances surrounding its execution. This process makes it much more difficult to assert later that the original agreement was entered into unfairly.

If you are married and have a premarital agreement, contact the Litigation Practice Group at Bingham Greenebaum Doll to review your original premarital agreement and to discuss the possible planning benefits of an amendment.

To learn more about Michael Kohlhaas and his practice, visit his profile.

  • Partner

    Mike is a partner in Bingham Greenebaum Doll LLP’s Estate Planning Department. The Estate Planning Department seamlessly coordinates and executes a wide array of legal services that cater to the unique needs of high ...



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