Alkalay & Smillie, PLLC

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Attorney Edward Alkalay writes a regular column for the Conway Daily Sun newspaper entitled "The Legal Corner." His articles address a wide variety of timely legal issues. Click on the titles below to review his past articles.
 

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The Legal Corner: The Legal Corner: The security of a prenuptial agreement

Over the past year, a number of people entering into second marriages have asked me about the benefits of a prenuptial agreement. Perhaps the biggest myth that people have is that prenuptial agreements are only for the wealthy or for people who do not trust one another. Certainly, prenuptial agreements are not for everybody, but they can provide valuable security and peace of mind to people under certain circumstances, especially when the people getting married have children from a previous marriage.
A prenuptial agreement is a contract created by two people before they get married. The agreement usually lists the money, personal property, real estate, and any other valuable items that the individuals own. Full disclosure of assets is essential to the enforceability of the agreement. The agreement usually also lists debts of each individual and indicates what rights each individual will have in the assets/debts after the couple is married.
Although most people think of prenuptial agreements as only for the wealthy, they can also be valuable to others of lesser means. When people get married with children from a previous relationship, a prenuptial agreement can define whether property will pass directly to children of a previous relationship upon one spouse’s death or be split in some way between the spouse and the children. If the couple does not have a prenuptial agreement, the surviving spouse will likely be entitled to a large portion of the estate.
These types of considerations also tie into estate planning issues and to the importance of having a will. However, even if the individuals make wills which leave the bulk of their estates to their children, under New Hampshire law, the surviving spouse still has the right to elect to receive one-third of her spouse’s estate. A prenuptial agreement can resolve this issue if the couple wishes.

In addition to asset division upon a spouse’s death, there are other uses for a prenuptial agreement such as:
(1)Defining the financial parameters of the spouses during the marriage;

(2)Specifying the rights of spouses in the event of a divorce;

(3)Protecting one spouse from the debts of the other spouse; and

(4)Keeping real estate in one spouse’s family.

In short, prenuptial agreements are not simply for wealthy people or those who do not trust one another. They can provide important security and peace of mind to people under many different circumstances. Prenuptial agreements should not be a wedge between spouses, but rather a means to clarify issues before marriage, so as to avoid problems afterwards.

Edward D. Alkalay is a partner at Alkalay & Smillie PLLC and can be reached at (603)447-8994 or ed@northconwaylawyers.com. (This article conveys general information and should not be relied on for legal advice without further research and/or consultation with an attorney.)

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