Did you know that when you get married, you are essentially entering into a contract with the government and your spouse that says you each are entitled to certain rights? That’s right—a wedding is more than just a romantic and magical event—it’s also an agreement that, as spouses, you each will be entitled to certain rights, such as property rights upon divorce, upon death, and spousal support. The good news is that with a valid prenup or a postnup, you can alter this contract with the government that entitles each person to certain rights. You can waive the rights or protect them. Let’s get into everything you need to know about using a postnup to protect (or waive) your spousal rights.
What are the different spousal rights?
First, what spousal rights are available for protection? A postnup generally addresses three main spousal rights: (1) Property rights upon divorce; (2) Spousal support (i.e., alimony) upon divorce rights; and (3) Property inherited upon death. Let’s discuss each and why they may be worth waiving or protecting.
Property rights upon divorce
When you get a divorce, depending on the state law and your unique situation, you and your spouse are entitled to share your marital assets and may be entitled to one another’s property. When you enter into a marriage, you create a marital estate (also known as community property), which is divisible, and sometimes, spouses may even be entitled to the other’s separate property acquired before the marriage (in some states).
For example, in California, when you get married, generally, any assets you accumulate immediately after the wedding count as “community property” and will be divided 50-50 in a divorce. Each spouse has a “right” to this property.
Spousal support upon divorce
Another right you may incur as a married person is the right to spousal support. However, spousal support is not a guaranteed right—it is up to the state laws to determine if someone is entitled to this right. For example, some states have specific guidelines outlining who has a right to spousal support, and other states allow a judge to use their discretion to decide (or a mixture of both). For example, Tex. Fam. states the eligibility requirements for spousal support in Texas.
Property inherited upon death
When people enter into a marriage, they also may earn certain rights to inherit their spouse’s property upon death. In some states, this right is called the spousal elective share right, which basically says that surviving spouses may be entitled to portions of their deceased spouse’s estate, even if the deceased spouse wrote them out of the will.
When to use a postnup to protect spousal rights
Generally, most attorneys would recommend (for most situations) a prenup. Prenuptial agreements tend to be favored more by courts in most states than postnups. However, postnups can still be a great option. Postnups are a relatively newer legal concept, so some lawyers are hesitant to recommend this option as it’s a bit of a legal grey area in some states/in some situations.
With that said, a postnup may still be a great option for you to ensure your spousal rights are protected (or waived). For example, if you simply missed the deadline for getting a prenup and opt for a postnup shortly after the wedding—some states may even treat a postnup executed shortly after the wedding the same way as a prenup.
Here are some other situations where a postnup may be a good idea:
- Financial changes: If you or your spouse have experienced a significant change in finances since the wedding day. This may include financial windfalls like receiving an unexpected inheritance.
- Life changes: If you or your spouse has a significant lifestyle change, such as becoming a stay-at-home parent when that wasn’t previously an option.
- Seeking clarity: If you and your spouse simply want clarity and certainty about certain aspects of the marriage and in the what-if scenarios.
- Marital issues: If you and your spouse have experienced some marital turbulence and you want to outline certain arrangements in your marriage to facilitate marital harmony.
- Financial disclosure: If you want to have maximum transparency regarding one another’s finances, getting a postnup can be a way to do that. Part of the postnup process involves financial disclosure where both parties share the values of their income, assets, debts, and future inheritances.
Postnup clauses that protect spousal rights
So, how do you go about using a postnup to protect your spousal rights? It’s simple. The first step is determining which spousal rights you want to protect (or waive). There are property rights upon divorce, property rights upon death, and spousal support rights to consider. Then, based on what you want to do, you can start adding clauses. Here are some clauses to consider:
Property division clauses
There are several ways to divvy up property and either protect or waive your spousal property rights upon divorce. You should consider discussing:
- What is separate, and what is marital property (if something is marital, it’s divided in a divorce
- How are marital property assets divided in a divorce—is it going to be 50-50, based on contribution, or something else?
- Addressing what contributions from either spouse do to the particular asset. For example, if one spouse provides capital to improve the other spouse’s separate property, how will that be handled?
- How assets in joint title will be treated
Spousal support clauses
With spousal support rights, you can either make sure they remain intact, limit them in some way, or eliminate them altogether. For example, here are some ways to address spousal support rights in a postnup:
- Leave it up to state law and a court to decide if a divorce occurs.
- Solidify that spousal support will be paid in a specified amount akin to what would be paid under state guidelines.
- Limit spousal support to a lower amount than what would typically be paid out under the state guidelines.
- Limit which income may be attributed to the spousal support calculation, which ultimately may limit the amount of spousal support.
- Waive the spousal support right altogether—meaning neither party can seek support from the other in a divorce.
Note that not every state allows you to alter spousal support in postnups. Some states consider this an off-limits spousal right that shouldn’t be touched.
Spousal inheritance rights
In many states, there is a spousal right known as the elective share right, which allows a spouse to take a portion of the deceased spouse’s estate, regardless of what the will says. You may waive this right in a postnuptial agreement. By waiving this spousal right, you are effectively saying that neither surviving spouse is entitled to their elective share right, which allows them a portion of their deceased spouse’s estate (unless a will or trust says otherwise).
How to create a valid and enforceable postnup
A huge part of protecting (or waiving) spousal rights in a postnup is making sure the postnup itself is valid and enforceable. This means you must create a postnup that follows the laws of your state. Each state has a different set of rules that apply to postnups. However, generally, most states require the following to create a valid and enforceable agreement:
- The postnup must be in writing
- The postnup must be signed by both spouses
- The postnup must have valid consideration (meaning each party “gets” something out of the agreement)
- Some states require witnesses and notarization, but not all
- Both spouses must provide the other with full financial disclosure of income, assets, debts, and inheritances.
- The postnup must be reasonably fair and not egregiously one-sided
- Both spouses must enter into the agreement voluntarily (no fraud, duress, coercion, undue influence, etc.)
- Hiring a lawyer may not be required but is usually highly recommended and helps increase the odds of enforceability of the agreement
Again, check with your state laws to understand what is required of your postnup.
The bottom line on protecting spousal rights
Entering into marriage is more than just walking down the aisle—it’s also entering into an agreement with the U.S. government that may entitle each spouse to certain spousal rights depending on the state. In a postnup, you can protect or get rid of those spousal rights, depending on your goals as individuals and as a couple. It is crucial to create a postnup that follows the laws in your state to ensure your agreement is actually enforceable. And, at the end of the day, you and your spouse can give yourself pats on the back for taking the plunge into the postnup world and protecting your future financial selves.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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