I am no fan of prenuptial agreements. The concept and tone that it sets seems flawed and negative. Having said that, I came across a few reasons recently why it makes sense in some cases to have a prenuptial agreement.
Why use a prenuptial agreement (“PNA”)? Because a PNA removes the need to determine what is a “marital” and what is “separate.” Each spouse is agreeing to take a fixed portion of other’s estate, regardless of how it is classified. It removes the concern that some “separate” property may be commingled and ended up being treated as “marital” property.
The PNA also may serve to protect the spouse who has little. Consider this example that I found recently provided in the Oklahoma Probate Handbook:
A man of wealth in his forties marries for the second time a woman without means and they live happily for forty years off the earnings of his separate property. No property was acquired by joint industry, neither spouse having worked. He dies, leaving all of his property to charity. Except for the wife’s homestead right and widow’s allowance, she is left destitute and penniless.
A PNA would have provided the woman with a defined share of the separate property, something in addition to the homestead right and widow’s allowance.
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