Minn. Stat. 519.11 covers the basics of antenuptial contracts. Antenuptial contracts are more commonly referred to as “prenups”. While many people know what prenups are, most don’t know what they can and cannot include, and the logistics and enforceability of them.
Simply put, these agreements are a contract made between two parties prior to marriage that sets out rights and property division in the event of a divorce. The prenup only becomes enforceable once the couple marries. While many people think the reason for prenups is in case of a divorce, they can actually help define the legal process upon death as well.
What Constitutes a Valid Antenuptial Agreement?
Under the Statute, for the antenuptial agreement to be valid it must be:
- In writing;
- Executed by parties of legal age;
- Acknowledged by the parties before a notary public;
- Executed after each party has had an opportunity to consult with legal counsel of their choice;
- Entered into before the date of the solemnization of marriage;
- Witnessed by two persons; and
- Accompanied by a fair and full disclosure of earnings by both parties.
What Does An Antenuptial Agreement Cover?
A prenup can include a variety of things, including:
- Right to property
- Division of assets and debts
- Division of expenses during marriage
- How to separate gifts or inheritances
- Spousal maintenance or alimony
However, there are also things it cannot cover, one of those things being child support since that technically belongs to or is for the child and not the parent.
The 2018 Kremer Decision and its Impact
Upon enforcement in the event of a divorce or death, the antenuptial agreement must still be fair. The laws surrounding antenuptial agreements can change from the date they are signed until the time in which one would be enforced. Take Kremer v. Kremer, 912 N.W.2d 617 (Minn. 2018)., for example – in Kremer, the Minnesota Supreme Court held that the common law test regarding procedural fairness applies to provisions in prenups that address marital property. The couple’s agreement in that case, only made general references to property and did not distinguish if it was marital or non-marital property resulting in the court holding that the agreement was subject to the common law test.
Under the common law test, an antenuptial agreement is procedurally fair if:
- There was a full and fair disclosure of the parties; assets;
- The agreement was supported by adequate consideration;
- Both parties had knowledge of how the terms of the antenuptial agreement impacted their rights; and
- The agreement was not procured by undue influence or duress.
Prior to Kremer an agreement was considered fair and valid if (1) there was full and fair disclosure, and (2) both parties had an opportunity to consult with legal counsel of their choice.
Antenuptial Agreements and Divorce
While there are many reasons for an antenuptial agreement, including protection for both parties in the event of divorce or death, they also can often speed up the divorce proceedings by resolving many issues in advance. They are most commonly used in cases where:
- There are different financial circumstances: a prenup can limit the property division and support payments upon divorce or death – especially if one spouse has established premarital wealth. For a spouse that may be in a financially weaker position, they can also provide protections and financial support.
- Business interests: Prenups can protect business interests of one of the party or parties’ in the event of divorce or death
- Protection of law in changing times: a prenup may modify rights that a spouse would otherwise have by law – such as property division.
As a reminder, an antenuptial agreement can address many issues, but primarily they address rights to property and / or support during the marriage, upon divorce, and/or upon death.
If you’re wondering if a prenup is right for you, Lake Harriet Law can help.
Please contact our team to schedule an office consultation.
Randall A. Smith – Managing Attorney 612-750-4843
Aubry Fritsch – Student Attorney 612-223-8925
Taylor Blatchford – Student Attorney 612-223-8925