Can I Protect My Pension With A Prenup?

Jul 29, 2023 | Prenuptial Agreements, Protecting Assets

Are you worried about protecting your valuable pension if your marriage ends in divorce? It’s a common concern that many people have when they’re getting married or going through a divorce. In this article, we’re going to explore the topic of safeguarding your pension with a prenuptial agreement, also known as a prenup. We’ll discuss the advantages, things to think about, and the steps involved in using this legal document to create a layer of protection for your pension.

Understanding Prenuptial Agreements

A prenuptial agreement is a contract that a couple signs before they get married. It’s a way to figure out who gets what if the marriage doesn’t work out. Now, you might think prenups are only for rich people or those who are worried their marriage will fail, but that’s not true! Prenups are actually super helpful for protecting different things you own, like your pension. They are also an emotional document that helps set expectations between you and your partner by facilitating in-depth communication on a variety of hard-hitting topics, like death, divorce, children, finances, etc. The bottom line is that prenups can be a valuable tool for anyone!

Protecting Your Pension

When it comes to planning for the future and retirement, few things are as important as your pension. A pension is a retirement savings plan that you contribute to over the course of your working years. It’s designed to provide you with a steady income after you retire, allowing you to enjoy your golden years comfortably.

But hey, life isn’t always sunshine and rainbows. When the topic of divorce or separation pops up, it can create worries about how your assets, including your pension, will be handled. That’s where understanding how pensions are treated in these situations becomes crucial, along with taking proactive steps to protect your hard-earned savings.

Remember, your pension is more than just numbers on a paper. It represents your dreams, aspirations, and all the effort you’ve put into your career. Taking steps to protect it means ensuring your well-deserved retirement is free from unnecessary financial worries.

How Pensions are Treated WITHOUT a Prenup

Let’s be real here: divorces and separations can be complicated. Pensions are often considered part of the marital/community property because they are accrued during the marriage. When something is considered marital/community property, it is subject to division between you and your spouse if the marriage comes to an end. Yikes! That’s why it’s important to explore ways to shield your pension from any potential storm.

Protecting Your Pension WITH a Prenup

The best way to create a layer of protection for your pension is by getting a… you guessed it: prenup! By addressing the ownership of the pension before the marriage, you can set clear guidelines for how a pension should be divided in case of separation and protect your retirement savings. 

You can make sure to keep your pension separate by marking it as “SEPARATE PROPERTY” in your prenup! Anything that is considered separate property is NOT divisible in a divorce.

This includes the appreciation of your pension! Surely your pension will grow over the course of the marriage, and you’ll want to protect that growth, as well as the principal amount. 


Benefits of Including Pensions in a Prenup

By incorporating pensions into a prenuptial agreement, you gain several advantages. Firstly, it safeguards your pension funds, creating a layer of protection so your pension remains intact. This protection becomes especially crucial if you’ve contributed to your pension over many years and rely on it as a primary source of income during retirement.

On top of that, a prenup establishes clear property rights and outlines the division of the pension. In other words: it sets expectations. Perhaps your partner has no idea that you wanted to keep your pension separate and was also relying on these funds. Getting a prenup can make sure to communicate this and set expectations. This helps to minimize potential disputes and uncertainty, providing peace of mind and financial security for both parties involved.


Factors to Consider When Putting a Pension in Your Prenup

Firstly, familiarize yourself with the specific laws and regulations governing prenups in your state or jurisdiction. Each location may have its own requirements and restrictions, so it’s essential to ensure compliance. For example, some states require a prenup to be executed a certain amount of time before the wedding day. If you’re already past that threshold, you cannot get a valid and enforceable prenup.

Additionally, think about the principal amount of your pension and the appreciation of such funds. Do you want to keep JUST the principal separate? Or do you want to keep the appreciation and additional fund growth separate, too? For example, John has a pension worth $300,000 at the time he gets married (he’s 40 years old). He’s totally okay with sharing the growth of the pension during the marriage, but wants to make sure his $300,000 stays with him (after all, he was single when he contributed to this fund and wants to keep this separate). But he is happy to share the increase in value with his new life partner because she will likely contribute in other ways, such as homemaking and childcare.


Alternatives to Prenuptial Agreements

If a prenuptial agreement is not a suitable option for you (perhaps you missed the deadline), alternatives exist. One such alternative is a postnuptial agreement, which is similar to a prenup but entered into after marriage. This can be a useful tool for couples who did not create a prenup before their wedding. Be warned: a postnup tends to be less enforceable and have more strict requirements, so a prenup is still the best option for the most optimal protection of your pension.

Can I Protect My Pension With A Prenup?

Communicating with Your Partner about Your Pension

Don’t forget arguably the most important aspect of protecting your pension with a prenup: discussing it with your partner. You cannot sign a prenup without agreeing on terms with your partner. So, the first step in protecting your pension is telling your partner. Tell them your intentions on protecting it and why, and then you can introduce the idea of a prenup. 


Frequently Asked Questions (FAQs) about protecting your pension with a prenup

Q: Can a prenup protect all types of pensions?

A: Yes, a well-drafted prenuptial agreement can protect various types of pensions, including but not limited to employer-sponsored pensions, individual retirement accounts (IRAs), and government pensions.


Q: Is it too late to create a prenup if I’m already married?

A: If you’re already married, you cannot get a prenup, but you may look into postnuptial agreements in your state. Most states allow for them, with specific stipulations. Postnups tend to be less enforceable than prenups, so beware!  Although it is created after marriage, it serves a similar purpose in protecting your assets, including your pension.


Q: How do I make sure my pension is protected with a prenup?
A: Make sure to mark any assets, including pensions as “Separate Property” in your prenup. When something is considered separate property it is not divisible in a divorce (as long as the prenup is valid and enforceable). 


Protecting your pension with a prenup is a wise step towards securing your financial future. By including your pension in your prenup, you can safeguard your retirement and establish clear boundaries with your partner. Make sure to consider your pension goals and the legal requirements, and don’t forget to engage in open communication with your partner throughout the process. With a valid and enforceable prenup, you can proactively take measures to protect your pension and ensure your financial future!


You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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