Are you getting a prenup soon? Congrats! It’s one of the best things you can do for your financial security and your future marriage. But you may be wondering what exactly you can put into the agreement and what topics you should consider prior to having the prenup conversation. Things like property ownership and spousal support are widely known, but what about the lesser-known topics like life insurance, tax filing, and pet custody? Let’s get into all the things you can (and cannot) include in your Indiana prenuptial agreement.
The laws on prenuptial agreements in Indiana
First things first—let’s talk about what laws govern an Indiana prenuptial agreement. Every state has its own laws, and in Indiana, Ind. Code § 31-11-3-1 controls the creation and enforcement of prenups. Indiana follows a set of rules for prenups called the Uniform Premarital Agreement Act. This is a model law that many states (28 of them) have adopted to make prenup laws similar across the country. Under the Indiana Code Section 31-11-3-5, there is a list of topics that may (and may not) be included in an Indiana prenuptial agreement. Here’s what it says:
- Property rights and obligations (owned now or in the future, anywhere).
- Rights related to managing and controlling property (buying, selling, etc.).
- How property will be divided upon separation, divorce, death, or other events.
- Modifying or eliminating spousal support (a.k.a., maintenance).
- Creating wills, trusts, or other arrangements to follow the agreement.
- Ownership and distribution of life insurance death benefits.
- Which state’s law will govern the agreement.
- Any other legal matter, including personal rights and obligations.
- Not permitted: Matters related to child support and child custody
As you can see from the above list, there are tons of topics you can cover. Pretty much anything financially related and not against public policy is on the table, except for child support matters. Child support matters should be determined by a court at the time of the divorce based on the best interests of the child.
Property division matters
The bread and butter of a prenuptial agreement is the property ownership and division clauses. These clauses cover things like:
- Real estate
- Inheritances
- Businesses
- Debt
- Bank accounts
- Investment accounts
- Retirement accounts
- Any other type of property with economic value
In an Indiana prenup, you can list any of the above assets/debts as either separate property or marital property. If something is listed as separate property, it is not divisible in a divorce. If something is listed as marital property, it is divisible in a divorce. You can also decide how those assets listed as marital property will be divided (50-50, according to contribution, etc.).
Spousal support matters
Another crucial aspect of Indiana prenuptial agreements is spousal support (called “maintenance” in Indiana). Without a prenup in Indiana, a court can order the wealthier spouse to pay financial support to the less-wealthy spouse, either in a lump sum or for a certain amount of time in installments. With a prenup, you can waive this right to spousal support or modify it. For example, you can say that spousal support will only be paid upon certain conditions, you can limit the amount, or you can say it is not available altogether.
Clauses about estate planning
Bear in mind that a prenup is not a replacement for a valid estate plan, such as a will, trust, advance healthcare directive, etc. However, there are certain aspects you can address about estate planning in a prenup. You can require a spouse to get a will or trust that mimics the terms of the prenup. You can also waive spousal elective share, which says that the surviving spouse may not take a portion of the estate. These types of clauses are usually most beneficial for folks with children from previous marriages who want to ensure all of their assets go to their kids and not their second or third spouse.
Life insurance clauses
You can require a spouse to go out and get a life insurance policy with a certain death benefit amount. For example, John and Sarah have a prenup that says John will get a life insurance policy in place, with Sarah as the beneficiary, and for a death benefit amount of $100,000, within 90 days of the wedding. This can be beneficial if one person is the breadwinner and wants to ensure the less-monied spouse is protected in any scenario.
Other clauses
That’s not all, folks! There are plenty of other clauses you can include in your Indiana prenup. As long as it is generally financial in nature and not against public policy, it should be enforceable. Here are some other clauses that may be included in Indiana prenups:
- Tax filing matters
- Pet custody
- Choice of law (which state law governs)
- Confidentiality
- Who gets to stay in the primary family home after a divorce
- And more!
There are so many options for your prenup, and what you include is incredibly unique to your specific situation.
Not permitted: Child custody and child support matters
According to the Indiana Code on prenups, child support matters are explicitly not permitted in prenuptial agreements. In addition, through Indiana case law and other laws, child custody matters are also not allowed in a prenup. This is because matters related to child support and custody are supposed to be based on the best interests of the child and not what the parents contracted to in a contract. Think about it—parents may draft their prenup years before a divorce occurs, and their child support and custody clauses may not be relevant anymore or be in the best interests of the children. That’s why it’s best to keep it out. Plus, an Indiana court will simply not enforce these clauses.
What about infidelity clauses or other lifestyle clauses?
When discussing prenups, a common question arises: “Can we put in something about cheating?” In Indiana, the answer isn’t a clear yes or no. There’s no specific law or court ruling here that tackles infidelity clauses. Across the country, however, many states that have looked at this generally don’t consider them legally enforceable. That said, if both you and your partner are aware that such a clause might not hold up in court, you could still include it as a way to set expectations and boundaries within your relationship. It would also be prudent to include a severability clause, which states that clauses that are unenforceable should be severed from the rest of the agreement and not deem the full agreement unenforceable.
The bottom line on what you can include in your Indiana prenuptial agreement
As you can see, there are tons of clauses you can include in your Indiana prenuptial agreement as long as you steer clear of child matters. Things like property ownership and division, spousal support, certain estate planning issues, and much more. As long as the matters are financially related and not against public policy, then they should be enforceable. Do some self-reflection and have some conversations with your future spouse to understand what clauses you want to include in your prenup! Happy planning!
Heather Franklin is a compassionate family law attorney with a focus on helping clients navigate complex legal issues during emotionally difficult times. Her practice is dedicated to helping clients with a range of family law matters, including divorce, custody, parenting time and child support, and prenuptial agreements.
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