Thinking about a prenup? You’ve probably considered how to divide your assets, whether alimony is included, and maybe even who keeps Fluffy. But have you thought about health insurance? It might not be as sexy as who gets the beach house, but it could prove to be a critical concern in the future. Should I include a health insurance clause in my prenup? And what does a health insurance clause even look like? Let’s find out the answers to your questions and learn more about prenups below.
Why should I include health Insurance in my prenup?
You’re not legally required to include a health insurance clause in your prenuptial agreement. But you really should. Prenups not only determine how assets and debts will be divided if there’s a divorce in the future, it can also spell out each spouse’s responsibilities after the marriage ends, including continued access to health coverage. Here are a few situations where a health insurance provision can be especially important:
- One spouse is covered under the other’s employer-sponsored health plan.
- One spouse stays at home or doesn’t work full-time, making independent coverage harder to secure.
- One or both spouses have pre-existing medical conditions that could make finding affordable insurance difficult if the marriage ends.
Here are some additional reasons you might want to include a health insurance clause in your prenup:
To safeguard access to coverage
If one spouse depends on the other’s employer‑based health insurance, or there’s a chance a spouse might solely be reliant on the other’s health insurance, a provision in a prenup can dictate what happens if that coverage ends due to divorce. Without this protection, you could be facing sudden uncertainty, and expensive COBRA premiums, at an already stressful time.
Planning for life and career changes
Spouses often change careers, jobs, or decide to stay home to raise the kids. A health insurance clause can offer financial reassurance if one spouse can’t quickly replace coverage. The pressure of making the right decision when it comes to big, life-changing transitions can be eased by knowing that if there’s a divorce in the future, your health insurance coverage has been planned for. This can be a huge comfort for stay-at-home parents or anyone pursuing a nontraditional career path.
A negotiation option
Health insurance can also be a helpful bargaining chip when negotiating prenup terms. For example, if a couple can’t agree on the amount or duration of post-divorce support, the higher-earning spouse could agree to keep the other covered under their plan for a set period, if their policy allows it.
To illustrate this point, say a couple cannot agree on an amount of financial support the more-monied spouse will pay to the less-monied spouse if there’s a divorce in the future. The higher-earning spouse could agree to provide health insurance for their partner for a predetermined set of time after a divorce, as long as allowable by their health insurance provider. This option could be an added benefit of a post-divorce settlement that isn’t specifically tied to alimony, but will help the less-monied spouse in the future, and will help the couple come to an agreement on a monthly alimony payment in the future.
Are health insurance clauses enforceable in court?
Prenuptial agreements are legally binding contracts that states generally uphold as long as they follow certain requirements. These requirements vary per state. Many states have adopted the Uniform Prenuptial Agreement Act (UPAA), and states that haven’t specifically adopted this act have similar requirements. At a minimum, a valid prenup must be entered into voluntarily, must be in writing, must fully disclose the financials of both parties, and not be so one-sided that it’s considered “unconscionable.”
There is no state law barring health insurance clauses in prenups, and there’s no law requiring their inclusion. As long as the clause is not unconscionable and does not violate public policy, a health insurance clause will generally be upheld as long as the rest of the prenup also follows state requirements for validity.
However, there are a few practical limitations to keep in mind:
- Insurance company rules: Even if your prenup says one spouse must maintain the other’s health coverage, the private insurer may not allow it after divorce. For example, employer-based plans often don’t extend to ex-spouses, which is why COBRA exists.
- Federal law (ERISA/COBRA): Health coverage through an employer plan governed by ERISA may override any conflicting language in your prenup. You can’t force a plan to cover someone it legally can’t. However, your prenup can still require one spouse to pay for COBRA or replacement premiums for a certain period after divorce.
This is another area where it’s important to consult an attorney who’s familiar with drafting prenuptial agreements. An experienced professional can ensure alignment with federal law and can draft language in your health insurance clause that accomplishes your goals, regardless of the source of the health insurance policy.
What does a health insurance clause look like?
The terms in health insurance clauses vary depending on what the parties want to accomplish. A health insurance provision can specify which spouse will cover insurance in case of divorce and for how long, or it can state that neither spouse is responsible for the other’s insurance, and it can also specify upon what future events might terminate a spouse’s obligation for covering insurance (i.e. the non-paying spouse remarries or starts a full-time job with health benefits).
Here are some examples of what terms in a health insurance clause might look like:
- “Spouse B will maintain health insurance covering Spouse A for as long as the policy allows.”
- “Spouse A will reimburse Spouse B’s premiums for up to $500 a month for 6 months.”
- “Spouse A may convert the plan to COBRA and Spouse B will pay the full premium through the end of the coverage period.”
The language in a health insurance clause should detail the specific situation each party is most comfortable with. Remember that when determining the validity of a prenuptial agreement, courts need to see that the signatures of the parties were voluntary. So, each party needs to agree to and understand the terms of the prenup and must sign off on their own will.
The bottom line on health insurance clauses in a prenup
When people think about prenuptial agreements, they usually picture dividing property or other big-ticket financial issues, not the fine print about health insurance. It’s unlikely anyone’s gossiping about the thoughtful health insurance clause your neighbor tucked into their prenup! But just because it’s overlooked doesn’t mean it isn’t important.
Making clear decisions now about how you’ll handle health insurance if your marriage ends is a smart, practical part of planning for the future. It can make life’s big choices, like changing careers or stepping away from the workforce to raise kids, feel less financially risky.
For example, if you or your fiancé decide down the road that it’s best for one of you to stay home with the children, a health insurance clause can help ensure that the stay-at-home parent isn’t left without coverage if the marriage doesn’t work out. That peace of mind can be invaluable, and help both of you make decisions that truly work for your family, not just your finances.
In short, it may not be the flashiest part of a prenup, but planning ahead for health insurance shows real care for each other’s well-being, no matter what the future brings.
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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