I’m a believer that creating a thoughtful, sensible prenuptial agreement is an important step in the wedding planning process. But, these agreements are often avoided because it can be uncomfortable to suggest one, much less discuss the specifics. (Click here for our previous blog post, “Roses are Red, Violets are Blue—Approaching Prenuptial Agreements Positively.”)
And, while it can be a more comfortable topic when viewed as an opportunity for healthy conversations around finances and expectations for the marriage (similar to those included in premarital counseling required by many religions), sometimes, even with a counselor’s help, your fiancé simply will not agree to enter a prenuptial agreement.
If a prenuptial agreement isn’t in the cards for you, there are other ways to achieve at least one common goal of prenuptial agreements: protecting the family business, family legacy assets and other assets acquired prior to marriage.
Strategies
Below are some strategies that in Michigan, and other “separate property” states, can help identify and protect assets acquired prior to marriage even if you don’t have a prenuptial agreement. Because property and marital laws vary from state to state, you should consult with your attorney prior to relying on these strategies, to ensure they work in your jurisdiction.
- Keep separate property separate. As a general rule, assets that you own prior to marriage and inheritances or gifts you receive during the marriage are considered your separate property, and any assets you acquire during the marriage are marital property. To bolster the likelihood that premarital and inheritance assets will be considered your separate property in the future:
- Keep all separate property titled in your name alone and maintain documentation that shows proof of ownership prior to marriage (or in the case of gifts/inheritances during the marriage, proof of origin).
- If you want a joint household account, which I generally recommend for marital harmony, open a new account to do so. Keep your old account in your name only.
- If you receive an inheritance or gift during your marriage that you want to maintain as separate property, place it in an account that is in your name only.
- Don’t contribute funds that are marital property (for instance, wages earned during the marriage) to your separate property accounts.
- Maintain title to real property.
- Keep title to prior-owned real property in your name only. Adding your spouse’s name to the deed will convert it to marital property.
- Pay expenses of the property (mortgage, taxes, insurance, etc.) from your separate property and not from funds acquired during your marriage, and maintain records.
- Document asset values just prior to the wedding. Just before your wedding day, save a copy of account statements, property tax bills or other documentation showing asset values as of that date. For hard to value assets such as a business, consider obtaining a valuation prior to the wedding. Documenting the value of your separate property on your wedding date will allow you in the future to more easily identify growth or value additions which have occurred during the marriage.
- Create a trust. There are many kinds of trusts, and here are two good uses of trusts in the absence of a prenuptial agreement:
- Create a revocable trust and place premarital funds into it. While a revocable trust itself is not an asset protection vehicle, it can help segregate and identify assets as your separate property.
- Domestic asset protection trusts (DAPTs) are allowed in Michigan. These are irrevocable trusts with special provisions that allow you to both create the trust and be a beneficiary of the trust, while protecting the assets from your creditors, including a spouse in a divorce.
- Ask to have your inheritance held in trust. If you expect an inheritance from family, ask them to structure your inheritance to be held in trust rather than given to you outright. Properly structured, the assets in the trust can be available to you but protected from creditors.
- Enter an agreement restricting ownership of the business. You and other owners of your business can enter an agreement which restricts the transfers of ownership interests only to the existing owners and descendants. Such agreements are common, and can prevent your ex-spouse from becoming an owner of the business.
- Document the family policy of requiring prenuptial agreements. If your family has an unwritten policy of requiring family members to enter prenuptial agreements, put that policy and the reasons for the policy, in writing. Doing so helps family members understand the importance of a prenuptial agreement and provides the vocabulary needed to describe its importance to a future spouse. This helps future spouses understand the agreement’s purpose and see that the request for an agreement isn’t due to the family’s feelings about him or her.
Help is Available
A prenuptial agreement should be considered a part of good financial, estate and business planning. If an agreement is not possible, you do have other options to protect your assets. Contact your Warner attorney or Susan Meyers (616.752.2184 or smeyers@wnj.com) for planning assistance to help you prepare for an upcoming marriage.
