In some circumstances, individuals intending to marry may want a Premarital Agreement (sometimes called a Prenuptial Agreement) so that the commitments that go hand-in-hand with their marriage vows are understood and protected contractually. In Pennsylvania, questions may arise as to the enforceability of a Premarital Agreement. However, with full and fair financial disclosure, a Premarital Agreement will generally be upheld.
Typically, a premarital agreement is sought where there are substantial individual assets, or family assets such as trusts or inheritances, that one or both parties want to have clearly excluded from the pool of marital property a divorce court could otherwise distribute between the parties. And if one or both of the parties already have children, it may be desirable for the interests of those children to be put ahead of the interest of the future spouse.
Upon marriage, certain rights arise under probate law, such as the right to take against the estate of a deceased spouse even if the surviving spouse is left out of the will. A well-written Premarital Agreement can supercede rights that would otherwise exist under probate law.
Since each Premarital Agreement is unique and intended to address many situations, the client should not settle for a “cookie cutter” agreement. It is important to discuss with a lawyer what provisions the client does and does not want in the Premarital Agreement, and the language should be tailored to address those issues. Furthermore, in order to waive rights that would otherwise flow from the marriage, and to protect the enforceability of a Premarital Agreement, clear language and full and fair disclosure are essential.