Creating LGBTQ-Friendly Prenuptial Agreements: What You Need to Know

Prenuptial agreements aren’t just for the rich and famous — they’re for anyone who wishes to protect their assets and outline financial expectations. While the laws governing LGBTQ+ marriage are the same as those for heterosexual couples, these contracts can be particularly important for LGBTQ+ spouses who have lived together for a significant amount of time prior to marriage. In such cases, they can be a crucial tool to ensure assets acquired before marriage are treated as marital property in the event of a divorce.

What Do Prenuptial Agreements Do?

Prenuptial agreements are legally binding contracts that are entered into between spouses before the date of the marriage. They can be used by heterosexual couples and LGBTQ+ couples to outline how property will be divided in the event of divorce, as well as how finances should be handled during the marriage.

A valid prenup can be tailored to do the following:

• Divide property — Prenuptial agreements can specify what property will be treated as separate and what assets will be characterized as marital property for the purpose of division in divorce.
• Protect an inheritance — A prenup can include a provision that states inherited assets will be treated as separate property and remain the property of the spouse who received them.
• Establish alimony — A prenuptial agreement can specify whether a spouse would be entitled to receive spousal support, as well as limit or waive it.
• Divide debts — A prenup can help to shield a spouse from the other’s debts, as well as outline how each spouse’s debts will be handled during the marriage.
• Safeguard business interests — If either spouse owns a business, a prenup can provide additional insurance to protect these assets when they go into the marriage.
• Specify distribution of investments — A prenup can divide investments, stocks, and other financial assets in divorce.
• Determine pet custody — A prenup can specify who will get custody of the family pet if the couple parts ways.

Critically, a prenup provides certainty in what will happen to property and assets if the marriage doesn’t work out. By determining the above matters in advance, a well-drafted prenuptial agreement can help to reduce conflict and lengthy litigation during divorce. It can also encourage spouses to have open and honest financial discussions, so they are both on the same page going into the marriage.

Why Are Prenuptial Agreements Important in LGBTQ+ Marriage?

While prenups function in the same way for both same-sex couples and heterosexual couples, they are especially important in LGBTQ+ marriages. According to statistics, same-sex couples often marry later in life — this means that each spouse may have accumulated more assets before marriage that may need to be protected in divorce. Since a prenup can decide property division matters in advance, they can help ensure an equitable outcome without the need for contentious litigation in the courtroom.

In addition, many LGBTQ+ couples choose to adopt children. Although child custody and child support cannot be included in prenuptial agreements, the document can still include clauses that indirectly impact the child’s wellbeing. For instance, provisions can be written into a prenup that protect inheritance rights and ensure assets are passed to adopted children after a spouse’s passing. Similarly, these documents can also offer financial protection to children from a spouse’s previous relationship.

What are the Requirements for an LGBTQ+ Marriage Prenuptial Agreement in Missouri?

There are unique considerations in an LGBTQ+ marriage that can make prenuptial agreements particularly significant. However, there are certain legal requirements in order for a prenup to be valid and enforceable under Missouri law. The agreement must be in writing and signed by both parties. It must also be fair and conscionable to both spouses — a prenuptial agreement that is overly one-sided is likely to be rendered unenforceable.

Additionally, for a prenup to be valid, full financial disclosure must be made between the parties. By law, the agreement must be entered into willingly, freely, and understandingly. It’s best to sign a prenup more than 30 days before the wedding, but Missouri courts will likely still uphold a fair prenup that was entered into closer to the wedding date. While not required, parties should also take the time to consult with an attorney to ensure they fully comprehend the terms of the agreement and can effectively negotiate them if necessary.

A prenuptial agreement can only be entered into prior to marriage. If spouses wish to enter into an agreement that handles financial matters in the event of divorce after they are already married, they can enter into a postnuptial agreement. These contracts essentially serve the same purpose and only differ based on the time they were entered into.

Contact an Experienced Missouri Divorce and Family Law Attorney

If you’re entering into an LGBTQ+ marriage and are considering a prenup or have been presented with one, it’s vital to have counsel by your side to ensure your financial interests are safeguarded. Divorce and family law attorney Mark A. Wortman provides skillful counsel and reliable representation to clients in the greater Kansas City, Missouri area for drafting, negotiating, and litigating prenuptial agreements.

If you are interested in learning more about how a prenuptial agreement can help protect your assets in divorce, Mark welcomes you to schedule a confidential consultation. To learn how he can assist you, please contact him today online or by calling (816) 523-6100.