Some people wonder if you need both a prenup and a postnup. It’s a great question! The answer is it depends. There may be certain situations where a couple has a prenup, and a postnup is never necessary. On the other hand, there may be other couples where circumstances arise that do necessitate a postnup. And keep in mind that neither agreement is required for the other to be valid. With that said, let’s dive into the question of whether you should get a prenup and a postnup.
What is a prenup?
A prenup is a contract you execute with your partner when you plan to get married soon. It lays out different aspects of your marriage, such as property ownership/division, spousal support, inheritances, businesses, and other matters. It must be executed BEFORE walking down the aisle and only becomes effective once you actually get married. Each state has its own laws regarding what is required for a valid and enforceable agreement.
What is a postnup?
A postnup is very similar to a prenup in that it is a marital contract that works out various aspects of the marriage, such as property division, alimony, and other matters. However, the main difference is that it is executed during the marriage instead of before the marriage. Postnups are also handled by state law but have fewer guidelines than prenups, which can make them a bit harder to enforce in certain situations.
Do you need both a prenup AND a postnup?
Do you need both a prenup and a postnup? Well, legally speaking, no, you don’t need to have both. You don’t need to have either. However, if you get a prenup, you may want to consider also getting a postnup if there have been significant life and financial changes that would benefit from an update to the prenup. Or maybe it’s been a while, and you simply want to reaffirm the terms of the prenup.
For example, let’s say John and Mary get a prenup that says everything stays separate and no alimony because both of them are financially self-sufficient. However, fast forward 10 years and Mary is now a stay-at-home mom with no income. She may want to consider a prenup amendment (which is essentially a postnup) that says that she may receive alimony and maybe includes a clause where she gets a payout from John or gets to keep the house since she no longer has a form of self-support.
Example scenarios of situations where couples may want or need both a prenup and a postnup
While not exhaustive, this list highlights common situations where couples might consider both a prenup and a postnup:
- One spouse receives an unexpected inheritance during the marriage that significantly increases their wealth, which was not addressed in the prenup.
- One spouse starts a successful business that was not anticipated in the terms of the prenup.
- One spouse accumulates a significant amount of debt which was not discussed in the terms of the prenup.
- One spouse was previously financially independent but then, throughout the marriage, quit their job and became reliant on the other spouse financially.
- The couple wants to change certain terms of their prenup or forgot to include certain terms in the first place.
- One spouse became disabled or some other impactful lifestyle change.
- Certain state laws changed, rendering aspects of the prenup irrelevant or void.
- Estate planning issues were not previously addressed, and the couple wants to address certain aspects of this in a postnup.
- The couple experienced significant marital turmoil and wants to use the postnup to change the terms of the prenup to reflect certain shifting relationship dynamics.
- You want to reaffirm your prenup after a large chunk of time has passed or on a regular yearly cadence (this may not be advisable in certain states, though).
Again, this list is not exhaustive, and there could be other scenarios where a prenup and a postnup make sense, so make sure to reach out to an attorney. Also, keep in mind that even if you fall into the above categories, it’s not necessarily a legal requirement to get a postnup, but it may be beneficial to your financial well-being.
Prenup amendment vs. a postnup
Interestingly, some states treat prenuptial agreement amendments as postnuptial agreements, while others don’t. This distinction might seem minor, but it can impact the legal requirements and level of scrutiny applied to the agreement. In essence, an amendment could be judged by the more lenient standards of a prenup in some states, while others might view it under the stricter scrutiny lens of a postnup. While the practical difference is often minimal, it highlights the importance of careful drafting and consulting with a knowledgeable attorney to ensure your agreement is valid and enforceable.
Why you may only need a prenup even if your life changes
In many cases, people with a prenup will never need to get a postnup because their prenup already accounts for future changes. For example, most well-drafted prenups will address future changes, such as starting a business and receiving unexpected future inheritances. So you can consider these things before you have them, and one day, if you do start and sell the next Amazon, you don’t need to go get a postnup to address it.
“But I’ve heard people get postnups every couple of years to reaffirm their prenup?”
Yes, sometimes people will get a prenup, and then every couple of years, they get a postnup that reaffirms the prenup. This is one strategy that can be useful for certain couples. However, it’s by no means a mandatory rule. You can absolutely do this if it brings you peace of mind and/or you want to ensure you and your spouse are aligned with your prenup for the entire marriage. However, keep in mind that in some states, postnups aren’t enforceable and/or heavily disfavored, so doing this in those states would have no effect.
The bottom line
So, what’s the takeaway? Getting a prenup and a postnup is not required by law in any state. However, getting both a prenup and postnup may become beneficial for certain couples in certain situations, such as those with significant life and financial changes. On the flip side, most well-drafted prenuptial agreements will already have these future changes incorporated into the document, so you shouldn’t ever have to need a postnup. But it is available for you if you want it.
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
0 Comments