An antenuptial agreement or a premarital agreement is a contract that is entered into by two parties prior to their marriage. The antenuptial agreement usually includes provisions for spousal support and/or division of property in the event of a divorce or dissolution. In addition, an antenuptial agreement sometimes also includes provisions concerning the amount of assets, if any, which will pass to the surviving spouse upon the death of the first spouse. Since spouses have various rights to assets upon the death of the other spouse, an antenuptial agreement can define and modify those rights before the marriage occurs. A postnuptial agreement is an agreement regarding these same matters which is executed after the couple is married. In Ohio, postnuptial agreements are not recognized.
In Ohio, the following five elements in some form or another are required for a valid antenuptial agreement:
- The agreement must be in writing.
- The agreement must be executed voluntarily by the parties.
- There must be full and fair disclosure at the time of execution of the agreement of all of each party’s assets and debts.
- The agreement cannot be unconscionable.
- The agreement must be executed by both parties in the same manner as is required for a deed to be recorded which means that the signatures must be acknowledged before a notary public.
Antenuptial agreements do not deal with issues relating to children of the marriage in general and specifically custody and visitation issues. These issues are to be determined in accordance with what would be in the best interests of the children at the time that the controversy, i.e., the divorce or dissolution, occurs.
Ante nuptial agreements are usually very important when one or both parties have a significant amount of wealth that they want to preserve for their respective families. In addition, if there is the potential possibility of a significant inheritance, then one party may want an antenuptial agreement executed.
However, in the state of Ohio, generally, any assets which an individual receives as a gift or an inheritance will not be included in any sort of property division as a result of a divorce if those gifted or inherited assets remain in the recipient spouse’s name or the use of those gifted or inherited assets can be traced to the purchase of new assets in the recipient spouse’s name.
Therefore, if you are contemplating marriage and have a significant amount of assets that you want to be protected for your family, it may be beneficial for you to discuss your potential need for an antenuptial agreement with an attorney. You will then be able to make an informed decision as to your need for an antenuptial agreement before your marriage.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663