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Questions about Ante-nuptial Agreement

An ante-nuptial or prenuptial agreement (commonly abbreviated as prenup) is essentially a contract entered into prior to marriage or a civil union. The content of an ante-nuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.

You may be wondering whether an ante-nuptial agreement is a wise choice prior to your impending marriage or you may have unanswered questions regarding your current ante-nuptial agreement and its role and validity in different situations. Listed below are a few questions answered by experts on ante-nuptial agreements.

Does an ante-nuptial agreement in Tennessee need to be notarized to be valid? Would the agreement be valid in Tennessee, in the event of death of either of the spouses after marriage? In case of a divorce after marriage, is an ante-nuptial agreement binding?

An ante-nuptial agreement is a contract. A contract may be valid if it is in writing, agreed upon, and signed by both parties. In most cases, notarizing a contract may prevent fraudulent or lack of capacity claims. However notarizing the ante-nuptial contract is not a mandatory requirement by law.

If a spouse is deceased after marriage, as per the family law in Tennessee, the ante-nuptial agreement would be valid. Similarly in the event of a divorce, an ante-nuptial agreement (signed and notarized by both parties) is binding. In both cases, the contract may be enforced, provided it was entered into prior to marriage and not under duress.

A couple signed an ante-nuptial agreement prior to marriage, but were divorced. If they wish to re-marry, does the previous agreement extend to the second marriage?

In most cases, an ante-nuptial agreement would cease in case of a divorce. The ante-nuptial agreement would have most likely been used to divide the assets at the time of divorce. If the couple wishes to re-marry, a new agreement may be drafted prior to the remarriage. The reason for this is that a new marriage needs a new agreement (even if the divorced spouse is remarrying the same person). The new ante-nuptial agreement may include any changes in property and other interests of the couple.

Can a person holding an ante-nuptial contract be appointed as “curator bonis” or “curator personae” to his or her spouse?

This is a possibility as the couple has separate estates due to the presence of an ante-nuptial contract. In many cases, a marriage without an ante-nuptial contract may be considered as a marriage in community of property, implying one estate. A person may be appointed as “curator bonis” to his or her spouse, however in most cases, the court may consider appointing an experienced individual to act as a “curator bonis” or “curator personae”.

Would an ante-nuptial agreement hold value in the event of an irrevocable trust being set up?

Usually an ante-nuptial agreement would still hold its value and importance. If they didn’t, trusts would possibly be a way to avoid any potential liabilities. It should be noted that the scope of the ante-nuptial agreement may also depend on the specific assets concerned.

Does a community property agreement signed after an ante-nuptial agreement void the same? (per Idaho code 15-6-201)

In most cases the two agreements – the community property agreement and the ante-nuptial agreement – may be referred to simultaneously, given that the community property does not include the property specifically found in the ante-nuptial agreement. Unless the agreements conflict each other or the community property states that it overrides prior agreements, both agreements may be valid.

An ante-nuptial agreement may play a vital role to safeguard your interests in the event of a breakup of a marriage. It may help in parting ways amicably since provisions are in place for both parties. Apart from the information conveyed above, ante-nuptial agreements may have several other aspects and nuances that may be relevant to your particular situation.
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