Do You Need a Prenup?

In other words, the subject is delicate. Talk to the lawyers who did your wills (you have wills, right?). They’ve seen lots of prenups, and will have ideas that help resolve conflicts. As a general rule, you and your soon-to-be spouse should use separate lawyers, to be sure that you’re getting independent advice. I confess, however, that I broke this rule. My husband and I share a lawyer we both trust. We negotiated our prenup in consultation only with her, and think we each got fair representation.

Whatever you do, be sure the agreement meets your state’s legal requirements. You must disclose all your income, assets and debts. You might need two witnesses. A signature can’t be coerced. If you meet all these tests, the prenup is virtually impossible to break in court. Note that the law doesn’t care if the deal is unfair, as long as you signed freely. If you’re presented with a grossly unfair, take-it-or-leave-it deal, put your plans on “pause.” It might be smarter not to get married.

Some financial issues can’t be resolved in a prenup. For example, take nursing-home expenses. If the ill spouse applies for Medicaid, the state will count certain income and assets held by both of you when determining whether to pay. The spouse at home might end up shouldering some of the nursing-home bill, no matter what the prenup says. You might also be responsible for each other’s medical bills and certain other essential expenses, even if you hold your money in separate accounts.

The money in your Individual Retirement Account goes to your named beneficiary, no matter what it says in the prenup or will. If you want your new spouse to get some of this money, you have to change the legal-beneficiary document.