When is a Pre or Post-Nuptial Agreement the Best Wedding Gift?
When long-term, same-sex couples finally marry, the best gift they can give to each other may be a pre or post-nuptial agreement. The more cynical and unflattering view of pre and post nuptial agreements is that they represent one or both parties hedging a bet. You hedge a bet to protect yourself in the event you have made a bad or wrong choice, and when that choice is about your mutual lifetime commitment, the very fact of hedging your bet, the cynics suggest, may undermine the mutual commitment to that choice. Conversely, under current Pennsylvania law on marriage and divorce, when long-term same-sex couples marry, their pre or post-nuptial agreement may be more like a doubling down on their bet than like hedging it.
Divorce law in Pennsylvania provides for the equitable distribution of the marital estate. Without trying to fully describe here how such property is defined and valued, the general rule is that it is property acquired by either party during the marriage. Beyond the general rule, though, the law provides for and will allow/enforce valid agreements between the parties about the content of their marital estate.
Many long-term and committed same-sex couples, who were prevented from marrying in Pennsylvania until last year’s historic decision in the Whitewood case (Whitewood v. Wolf, 992 F.Supp. 2d 410 (M.D.Pa. 2014) had committed not only their lives, but their finances, and both real and personal property held in their separate names to each other long before the date of their marriage. By entering into a valid pre or post-nuptial agreement, those couples can make their long-term financial commitment legally binding under Pennsylvania’s marriage and divorce laws.
The more conventional view and use of pre and post-nuptial agreements is to exclude certain property from the marital estate, and thus to provide that hedge on the bet such that the parties may contemplate terminating their marriage with limited financial consequences. In that context, it is not surprising that a party presented with a pre or post-nuptial agreement by his or her betrothed or spouse might not consider the agreement as much of a gift. Conversely, as contemplated here, the parties would use their pre or post-nuptial agreement to include in their marital estate certain property that the law would otherwise exclude. Accordingly, their pre or post-nuptial agreement would represent the parties’ doubling-down on their bet, by increasing the financial commitment to their marriage and consequences of its possible termination, and that sort of an agreement might feel like a generous and thoughtful gift.
At some point in the future, when same-sex marriage is no longer so new, it is likely that same-sex couples will enter or not enter into pre and post-nuptial agreements for all the same reasons that heterosexual couples do or do not. At that point, those agreements will universally have all the advantages and disadvantages they have always had. At this particular point in time, however, a pre or post-nuptial agreement may be a uniquely advantageous and attractive wedding gift between long-term committed, but newly married same-sex couples.
To schedule an appointment with one of our attorneys or for further information, call us at LaMonaca Law, at (610) 892-3877