GETTING MARRIED OR RE-MARRIED?
CONSIDER A PRENUPTIAL AGREEMENT

If you are planning to marry or re-marry, the question "Do I need a prenuptial agreement?" may have crossed your mind.

A prenuptial agreement is a contract relating to property made before the marriage by persons intending to marry. Another name for a prenuptial agreement is an "antenuptial agreement." In order to be effective, prenuptial agreements must be entered into voluntarily by both parties, with each understanding his or her rights and the extent to which they are waiving such rights.

Prenuptial agreements provide people who are considering marriage with the opportunity to ensure predictability, plan their futures with more security and decide their own destiny. Such agreements can foster strength and permanency in a marriage by allowing couples to think through the financial aspects of their relationship. The contents of a prenuptial agreement can vary, but commonly include provisions for the division of property and spousal support in the event of divorce. It may also modify or waive certain legal rights that the surviving spouse would have at the death of the first spouse to die.


A. Prenuptial Agreements and Divorce. The validity of prenuptial agreements in Michigan is governed by legal cases, rather than by laws enacted by the state Legislature.

The leading case in Michigan in the area of prenuptial agreements and divorce is Rinvelt v Rinvelt. There, the Court stated that prenuptial agreements are enforceable in the context of a divorce provided that certain conditions are satisfied. The Rinvelt Court indicated that the following must be considered in determining whether a prenuptial agreement is valid and enforceable:

1. Was the agreement obtained through fraud, duress, or mistake, or misrepresentation, or nondisclosure of material facts?
2. At the time of signing, did the agreement "shock the conscience"?
3. Have the facts and circumstances changed since the agreement was made, such that its enforcement would be unfair and unreasonable?

Prenuptial agreements have several essential elements:

1. The agreement must be in writing and signed by the parties prior to the marriage. It should also be notarized, as many states require a notarization (although Michigan does not).
2. The agreement should provide that marriage is a "condition precedent" to the enforceability of the agreement. The agreement is the offer and the marriage is the acceptance. If the marriage does not occur, the agreement has no legal effect.
3. The Rinvelt case imposes a special responsibility on both parties to disclose all material facts because without full disclosure, there cannot be a meaningful waiver of rights.
4. The agreement must be fair at the time it is to be enforced. The standard at the time of signing is whether enforcement of the agreement "shocks the conscience". In order to determine whether an agreement "shocks the conscience," a court analyzes (a) the relative bargaining power of the parties (what are their options?) and (b) whether the challenged term is reasonable. To determine fairness in the future, a court will consider changes in circumstances such as children, unemployment, serious health problems, bankruptcy and other factors.
5. The agreement must be in plain English because the parties must understand the agreement.
6. If either party is to receive spousal support, the agreement should say so.
7. In order to insure that the agreement not be modifiable by a court in the future, special wording must be used.
8. Perhaps the most significant standard is that each party must have competent counsel. If a party refuses to obtain counsel, the agreement will provide that he or she was advised of the significance of obtaining their own attorney, that they understand that the attorney represents only the other party and that they waived their right to counsel.

B. An Estate Planning Perspective on Prenuptial Agreements.

A prenuptial agreement permits couples to modify and waive legal property rights that each would have had at the death of the other spouse. These rights include the following:

1. The homestead allowance (currently $20,000);
2. A family allowance of up to $18,000 without court order;
3. The right to $13,000 of "exempt property" such as household furniture, automobiles, furnishings, appliances and personal effects;
4. A wife's dower rights; and,
5. The right to "elect against" the spouse's will.

The leading Michigan case on pre-marital agreements that govern the distribution of property at death is In re: Estate of Benker. The Benker Court said that premarital agreements governing the distribution of property at death give rise to a special duty of disclosure not required in ordinary contract relationships. The parties must be fully informed before entering into such an agreement. In general, a court will presume full disclosure except under certain circumstances including but not limited to the following:

1. The agreement provides for the complete waiver of all rights of inheritance and election and makes no provision for the wife on her husband's death;
2. The husband's estate was very ample when compared to the wife's;
3. The husband was secretive about financial affairs, lived modestly and did not display his wealth;
4. The agreement made no record as to whether the parties were fully informed of the other's property;
5. The wife was not represented by independent counsel;
6. The attorney drafting the agreement did not press the matter of full disclosure; and,
7. The attorney drafting the agreement testified he was not concerned with what the widow would receive.

Thus, for premarital agreements to be enforceable in Michigan, there must be full and fair disclosure of all assets and liabilities. Further, it appears that when one of the parties has a disproportionately large estate, the court will look at the agreement more carefully when determining whether the person with the larger estate made full disclosure (especially where the person with the smaller estate was not represented by separate counsel).

Finally, it is critical that the prenuptial agreement be coordinated with the married couple's estate plan.


This general legal information should not be treated as tax, legal or accounting advice. Every situation is different and other issues may exist. Nor should this information be used as a guide in all situations. Please contact attorneys Marisa Petrella or Linda Hagan at mail@petrellabrown.com for additional information.