Prenuptial agreements can help calm the fears of family members, and the parties to an upcoming marriage.

Massachusetts law allows prenuptial agreements that manage the property of the husband and wife. The agreement can limit the husband or wife to the whole or any part of any property. Mass. Gen. Laws ch. 209, §25.

The agreement can set out the rights of the surviving spouse upon death of a spouse, and/or upon divorce. The agreement will be considered a valid contract, as long as both parties were open and honest about their income, assets, liabilities when they made the agreement.

If you are planning to marry, your should have a prenuptial agreement if:

• it's your first marriage, and you are an elder couple; or
• one or both of you have been previously married . . . especially if either party (or both) have children from the previous marriage; or
• one spouse has a hazardous occupation or health problems; or
• one spouse is involved in owning and operating a family business.

Example: Here are some of the things that an older couple could include in their prenuptial agreement:

1. The bride and groom would disclose their monthly incomes, and decide how much of their income they would use for their joint lives together;
2. The bride and groom would decide on what rights they might have to the retirement plans of the other spouse, and they would declare how their individual retirement accounts would be distributed upon their deaths;
3. If either spouse have long term care insurance, they could declare how the premiums would be paid, and whether their other health care expenses and premiums would be paid from their joint funds or individual assets;
4. If Party A owned a home, the couple could agree on who would own the home, and what rights to the home would have, if Party A predeceases Party B;
5. If Party B and her brothers and sisters are involved in a family business, the agreement would set out the rights of her family members to ownership interests in the business.

This short 5 point list is just a sample of the specific decisions that you can write into a prenuptial agreement. There are some things a prenuptial agreement cannot do:

• it cannot waive the rights of the affianced to a qualified plan; Under the Retirement Equity Act of 1984, the Joint and Survivor Annuity form of payment is required, unless your spouse has explicitly waived the right to receive benefits from most qualified plans. (This spousal waiver requirement does NOT apply to IRA's). But, the spouse's rights to the qualified plan cannot be waived in a prenuptial agreement. "An agreement entered into prior to marriage does not satisfy the applicable consent requirement." 26 CFR §1.401(a)-20, Answer 28. PDF. That's because the "waiver" would have been made before the couple were spouses.
• it cannot enforce the ownership rights to real estate against third parties (people other than the spouses) unless it is recorded in the registry of deeds within 90 days after the marriage. Mass. Gen. Laws ch. 209 §26

If you are planning to marry, we can work with the attorney for your spouse, and prepare an agreement that will serve your needs, and protect the interests and harmony of your family. Please call us for an appointment.