Family Law Blog

Reasons for considering a prenup; is it right for you?

Jul 06, 2017 by Paul B. Hervey

Antenuptial agreements (“prenups”) have a long history, dating back thousands of years. They are routine in Jewish and Muslim marriages. Even Catholicism allows prenups that involve the distribution of estate assets (as opposed to a divorce).

Prenups are rooted in an historic era where women could not legally hold property in their own name.  At that time, prenups allowed the bride’s family to sue in ecclesiastical courts to enforce the groom’s obligations – whether during the marriage or after separation. They usually were combined with a “dowry” given by the bride’s family to the groom.

These unequal legal rights, between bride and groom, were the basis for many common laws and American statutes. “Dower rights” usually protect a wife from attempts by her husband to sell or give away real estate to others without her permission. It is why both spouses must sign a mortgage, even if only one spouse or the other is obtaining the loan. Many states (including Ohio) have statutes that make sure that spouses get at least a certain percentage of the estate of his or her deceased spouse so that they are not left penniless.

In modern America, there are still many reasons parties may want to enter into a prenup: 

  • To lay out expectations in case of a divorce to avoid fighting.
  • To protect a family business from division.
  • To allow couples to gain civil or tax advantages in gifting without risking the loss of property in a divorce or an estate proceeding.
  • To allow parents to gift assets to a child without worry about later division.
  • To allow families to invest in a family business without worrying about court fights.
  • To allow couples marrying later-in-life to avoid fights between spouses and adult stepchildren.
  • To allow couples to enjoy the benefits of marriage without risking the loss of an inheritance to children from a previous marriage.

For more information on why a prenup might be right for you and your soon-to-be-spouse, contact Paul Hervey at pbhervey@dayketterer.com or 330.455.0173.

Next week: Legalizing the antenuptial document.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.