Prenuptial Agreement Template

PRENUPTIAL AGREEMENT THIS PRENUPTIAL AGREEMENT, made and entered into this ________ day of _______________________, 20__, between _______________________ (hereinafter “_______________”), a resident of ___________ County, _________________, and  _______________________ (hereinafter “_______________”), a resident of ___________ County, _________________, is as follows: WITNESSETH: WHEREAS, _______________________ and ______________________ are anticipating marriage to each other in the near future; and WHEREAS, the parties have fully discussed and, in consultation with their respective independent legal counsel, have been advised of the legal rights of a surviving spouse in the deceased spouse’s estate and the legal rights of each party to a marriage in the event of a divorce or separation; and WHEREAS, each of the parties owns certain assets in his or her own name, and each has informed the other of the respective financial condition of each, a statement of the estimated net worth and listing of substantially all of their assets having been prepared by each of the parties and attached hereto as Exhibits “A” and “B,” and incorporated herein by reference; and WHEREAS, it is desired by _______________________ and ______________________ that (except as set forth herein) their marriage shall not in any way change their presently existing obligations or their presently existing legal rights to their respective properties, including the right to dispose of their separate estates to their heirs (exclusive of the parties hereto) or otherwise, and that any such marriage shall not affect any rights of inheritance that their respective heirs, devisees, legatees or beneficiaries may now have, whether by the laws of intestacy, testamentary disposition, beneficiary designation or lifetime gifts, in the property acquired by each of the parties; and WHEREAS, the parties believe that unfortunate disputes and misunderstandings can be avoided by settling now their respective rights upon the death of either of them, and in the event their marriage should terminate other than by the death of one of the parties; and WHEREAS, the parties desire to accept the provisions of this Agreement in full discharge and satisfaction of all rights or claims that may accrue to each of them upon the death of the other, or upon their separation or divorce; NOW, THEREFORE, in consideration of the above premises, of the contemplated marriage of the parties, and of the mutual promises and undertakings herein contained, it is hereby agreed by and between the parties hereto as follows: 1.       After the marriage of the parties, and except as hereinafter provided, each of the parties shall separately retain all rights in his or her own property, both real, personal and mixed, including any business interests in any partnership, corporation, limited liability company, sole proprietorship, or otherwise, whether tangible or intangible or chose in action, or the proceeds derived therefrom, and property received in exchange for any of such property, and, except as otherwise herein provided, each of them shall have the absolute and unrestricted right to dispose of such separate property, as hereinafter defined, free from any claims that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them.  This paragraph shall apply not only to the assets and property owned by each of the parties hereto on the date of their marriage, but also to all increases in value thereof, all other property acquired by each party in his or her own name, and all future income, earnings and accumulations resulting from each such party’s personal services, skills, efforts and work, and from investment income and gains, which are earned or accumulated during the marriage.  This paragraph shall also apply to all bequests, devises, gifts or acquisitions by inheritance or otherwise which are received by either party during the marriage, together with all proceeds and products acquired therefrom in such party’s own name, or in joint names with such party and one or more persons who are not the other party hereto (collectively, the “separate property”).  Items purchased by either party after the marriage without indication of title shall be deemed the property of the party so purchasing.  However, the parties agree that any property purchased through an account that is jointly owned by the two of them or with their joint funds shall be considered as joint property.  No contribution of either party to the preservation, appreciation, management, growth, care, maintenance, improvement, custody or repair of the separate property of the other party, regardless of the form such contribution may take, shall convert such separate property to joint property, and any such contribution shall be deemed to be a gift and shall become a part of the separate property to which the contribution relates.   A Section 529 Savings Plan with a party designated as its owner, shall be the separate property of the owner, regardless of which party made contributions to such Plan. 2.       Each party shall have at all times the full right and authority, in all respects, the same as each would have had if not married, to use, enjoy, manage, lease, convey, encumber or otherwise dispose of such property as may belong to him or her, and to receive all monies, rents, issues, income and profits thereof without any restrictions whatever, and without interference from the other party. Other: ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 3.       The parties affirm that they love one another.  This Agreement is not in contemplation of divorce, nor is it to be thought of, construed or intended to be an agreement in contemplation of divorce or separation.  However, in the event that divorce, separation or annulment should occur, the parties hereby agree as follows: a.       Each party, in the event of a separation, divorce, or annulment (regardless of which party initiates such action) shall have no right against the other by way of claims for support, alimony, attorney’s fees, or costs of division of property, except as set forth hereinafter. b.       No property titled in the name of either party shall be considered subject to equitable division by any arbitrator, private judge or by any court of competent jurisdiction, even if such property, or income produced by such property, is used regularly for the common benefit of the parties during their marriage.  Both parties expressly reject the concept of unintentional transmutation of separately owned property into joint property.  However, the parties agree that at some future time they may agree to comingle otherwise separate property by clear and overt acts in writing or by joint title by the creation of joint accounts or placing both parties’ names on the title of any property and thereby intentionally create joint marital property for the purposes of creating rights in the other in the event of death, divorce or separation. Such conversion of separate property to joint property shall not require any amendment of this Agreement or any notice of approval of any heirs or devisees. c.       If, in the future, a judgment of divorce, dissolution or separation should be entered in any action or proceeding between the parties or upon any application for temporary or permanent support or alimony, this Agreement shall be exhibited to the presiding judge before whom such proceedings shall be heard, and the parties agree to direct their respective counsel to present this Agreement to the court for the court to incorporate this Agreement as part of its judgment, but this Agreement nevertheless shall at all times be construed as an Agreement having independent legal significance.  In the event that the court does not accept this Agreement as part of its judgment, then the parties agree that this Agreement shall nevertheless survive as a contract between them and be forever binding and conclusive as to their rights and liabilities and those of their respective heirs, legatees, devisees, administrators, executors, personal representatives and other legal representatives and assigns.  In the event either party commences an action against the other party for separate support or divorce, each party shall be responsible for the payment of his or her respective legal fees incurred in connection therewith. d.       Except as specifically provided herein to the contrary, each party may make such disposition of his or her separate property, as the case may be, by gift or will during his or her lifetime, as each sees fit; and each of the parties hereby waives, relinquishes, conveys, quitclaims, bars, discharges, surrenders and releases any and all of his or her right, title and interest of every kind and description which he or she may have, acquire, enjoy or be seized of by reason of their marriage in and to the separate property of the other, whether by way of inheritance, succession, family allowance, homestead allowance, exempt property, elective share, rights under the Retirement Equity Act of 1984 to benefits in qualified retirement plans and/or Individual Retirement Accounts, (dower, curtsey, community property, and quasi-community property) or the operation of the laws of intestacy, except as may be set out herein, and each party waives any right he or she may have, if any, by statute or otherwise, to act as personal representative or administrator of the other party’s estate, except as specifically provided for in the Will of either party.  Each of the parties agrees to refrain from any acts or proceedings to attempt to void or nullify to any extent or in any particular the terms of any Will of the other. e.       Both parties shall have the right to retain any gifts made to each other either prior to or during their marriage.  No gifts which either party may make to the other will diminish or increase the amount to which each of them will be entitled under the provisions hereof, unless the parties agree in writing that any such gifts will be applied on such amount to which she may be entitled. Other: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 6. If, after the proposed marriage of the parties takes place, the parties live together as spouses for any period of time, and either party should die, then in such event, the surviving party shall have no claim upon the estate of the deceased party except as may be otherwise specifically provided in the Last Will and Testament of said deceased party and except as set forth in paragraph 7 below. 7. If the parties marry and shall be living together at the time of the death of one of them and/or immediately prior to such deceased party’s last illness, then the following provisions will apply and be made effective by way of a deed or a Will, Codicil, Trust document or other appropriate testamentary instrument: a.       Each party will cause the parties’ primary residence (to the extent such residence is owned by him or her), subject to all mortgages, liens or other encumbrances on such residence at the time of first spouse’s death, to be distributed to the survivor of them upon the death of the property owner. b.       In the event either party fails to implement any of the provisions described in paragraph 7(a) of this Agreement in his or her estate planning documents or otherwise, the surviving party or the children of either party shall have a claim against the deceased party’s estate to enforce such rights. ❏      Other: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 8. Nothing contained in this Agreement is intended to negate or affect the right of either party to make a Will which provides for a gift, bequest or devise to the other party, and the parties intend that no such Will nor gift, bequest nor devise made thereunder shall be construed as made in breach, or contravention, of this Agreement, nor shall such be construed as a waiver of any provision hereof, but it is clearly understood that any such gift, bequest or devise shall in no manner be required of either party, except as provided herein.  Furthermore, the parties agree that, except as provided for hereinabove, although neither party shall have the right to participate in the estate of the other, if a gift, bequest or devise is provided for him or her in the Will of the other party, then, he or she shall participate in the estate of the other only to the extent of that gift, devise or bequest, and such participation shall be considered to be in addition to anything received or required to be furnished under this Agreement. 9. Nothing contained in this Agreement is intended to negate or affect the right of either party to designate the other party as a death beneficiary of amounts payable under contract at the death of the designating party, including, but not limited to, life insurance proceeds and retirement plan accounts, or the right of either party to take title to any assets as joint tenants with rights of survivorship with the other party.  The parties intend that any such beneficiary designation or holding title to any assets in such manner shall not be construed as made in breach or contravention of this Agreement and shall not be construed as a waiver of any provision hereof, but it is clearly understood that such designation shall in no manner be required of either party. 10. In the event that either of the parties desires to mortgage, sell or convey all or any portions of his or her separate property or estate, whether real, personal or mixed, and whether tangible or intangible or chose in action, each one will join in the deed of conveyance or mortgage or other instrument, as may be necessary, in order to effect such conveyance or mortgage.  However, neither party shall be obligated by the terms of this Agreement to incur or in any way subject himself or herself to any liabilities which have been or shall at any time in the future be created by the other. 11. Except as otherwise specifically provided herein, any debts or liabilities of the parties or claims against either of the parties existing at the time of termination of the marriage shall be the responsibility of the party who incurred such debt or liability or against whom such claim is made; provided, however, that any claim in the joint names of the parties shall be the responsibility of the parties in proportion to their use and enjoyment of the particular property or the benefit they individually received or enjoyed from the particular property against which such claim, debt or liability is made. 12. Each party hereto agrees to sign any and all documents necessary in order to carry out the intent of this Agreement, including without limitation, a waiver of spousal rights under any qualified retirement plan of which either party is a beneficiary. 13.  It is expressly agreed that this Agreement is entered into with each party being represented by his or her respective independent legal counsel, and after a full and frank disclosure, and with knowledge on the part of each party as to the character, extent and approximate value of the estate of the other, and of all of the rights conferred by law upon each in the estate of the other as a result of their marriage, and it is the desire and wish of each of the parties hereto that all of their respective rights to the property and estate of the other which may have arisen because of their marriage shall be completely abrogated by this Agreement.  Each party agrees that such party has had an adequate opportunity to examine a financial statement of the other party and that all requests for additional information pertaining to any assets, property or liabilities of the other party have been fully satisfied by the other party.  Each party agrees that he or she has had adequate opportunity to consult with counsel of the party’s own choosing regarding this Agreement. ❏      Other: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 14.  Each of the parties believes the information related to the assets and net worth of each of them detailed on Exhibits “A” and “B” hereto to be reasonably accurate as of the date of each schedule.  It is understood that no professional appraisals have been used in obtaining such values unless otherwise specifically noted on the Exhibits, and that such values are based upon information available to each party in preparing such schedule after reasonably diligent inquiry, and each agrees to the expediency of preparing such schedules based upon such reasonable diligence and estimations of value and hereby waives any professional appraisal of the property or property rights described.  Each party has disclosed to the other, to the best of his or her knowledge and belief, the nature and extent of said property and interests, but the exact value of said property and interests is disclosed by means of estimates which are limited by the information that can be practically obtained within the time frame agreed to by the parties.  Each party has inspected and is aware of the nature and condition of the tangible property of the other and the extent thereof.  Further, each party recognizes that the other party may receive property through trust distributions, gifts, bequests, devises and/or inheritances during the marriage, and that such gifts, bequests, devises and inheritances could be significant.  However, both parties acknowledge that the amount, if any, of such trust distributions, gifts, bequests, devises and inheritances is speculative and cannot be predicted or determined with any certainty, and that they are willing to waive their respective rights to such trust distributions, gifts, bequests, devises and inheritances regardless of the amount thereof.  In all events, the sufficiency of such disclosure by each party is agreed to by the other party after consultation with that party’s respective advisors. 15. Each party hereby acknowledges that he or she has given full consideration to the net worth and income of the other party, and he or she is entering into this Agreement freely, voluntarily, without the exertion of duress or undue influence upon either party, and with full understanding of all of the provisions of this Agreement, believing it to be fair, just and reasonable. 16. In the event that any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 17. Each party acknowledges that the circumstances at the time of the death of either party or the termination of the marriage by divorce or legal proceedings may be different from those circumstances existing at the time that this Agreement is entered into.  Each party is aware that any federal or state statute or regulation that may be hereafter enacted or promulgated may change or affect the rights which each party would have had in the other’s estate had they not executed this Agreement.  Nonetheless, the parties, even in the event of a change of circumstance, agree to be bound by this Prenuptial Agreement. 18. This Agreement shall be controlled, construed and given effect by and under the laws of the State of _______________.  It is intended that this Agreement shall continue to be valid and effective in all places where it is to be performed without respect to where the parties are domiciled or where the parties may own property at any time in the future. 19. This Agreement shall not be extinguished by merger as result of incorporation in any decree, order, or judgment, or otherwise.  This Agreement and all representations and warranties herein shall in all events survive the execution and delivery of the Agreement, the solemnization of the marriage and the consummation of the transactions herein contained, and shall expressly survive any decree, order or judgment of any court of competent jurisdiction and be forever binding upon the parties and their respective heirs, legatees, devisees, administrators, executors, personal representatives, and other legal representatives and assigns.  In the event of the termination of the parties’ contemplated marriage by legal proceedings, this Agreement shall be interpreted as a contract having the same ramifications, consequences and binding effect as a formal property settlement agreement containing these same provisions, and this Agreement shall have independent legal significance.  Neither party shall cause to be inserted or request that there be inserted in any decree, order or judgment which may be entered in the future, any provisions inconsistent with any of the provisions of this Agreement.  Each party hereby indemnifies the other’s estate against, and agrees to hold the other and other’s estate harmless from the terms of any such judgment, order or decree containing terms contrary to the provisions of this Agreement, including without limitation reasonable attorney’s fees, costs and expenses incurred in enforcing this indemnification. 20. Legal Representation.

• _________________________ has had the advice and counsel _______________________, of the law firm of __________________ located in ______________, _____________, and _________________________ has had the advice and counsel _______________________, of the law firm of __________________ located in ______________, _____________; or
• The parties hereby represent that they had ample opportunity to seek and consult legal counsel, but have chosen not to engage counsel in negotiating and drafting this agreement. Either party’s failure to consult counsel serves as a waiver of acknowledgement of said right. The parties acknowledge that they understand all contents of this agreement, and agree that this agreement is reasonable and fair. The parties have voluntarily and freely entered into this prenuptial agreement.

This Agreement may be executed in two or more counterparts, each of which shall for all purposes be deemed to be an original, but each of which when so executed shall constitute but one and the same instrument. 21. This Agreement shall come into effect only if the parties are hereafter legally married, as presently contemplated, and on coming into effect shall be binding upon, and shall inure to the benefit of the parties hereto, and their heirs, personal representatives, administrators, devisees, legatees, successors and assigns. 22. The parties hereto reserve the absolute and unconditional right to alter, amend, or revoke this Agreement, in whole or in part, at any time or from time to time, so long as such alteration, amendment or revocation is in writing and signed and notarized by both parties. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals all on the date and year first above set forth. [Signatures on Next Page] WITNESSES AS TO __________________________. _______________________________ _________________________________(SEAL)   ___________________’s Signature _______________________________   WITNESSES AS TO __________________________. _______________________________ _________________________________(SEAL) ___________________’s Signature _______________________________ I, the undersigned, a Notary Public in and for the State of ___________ at Large, hereby certify that __________________________, whose name is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, they executed the same voluntarily on the day the same bears date. Given under my hand and seal this _________ day of ______________________, 20__. _____________________________________________ Notary Public My Commission Expires:_________________________ [SEAL] I, the undersigned, a Notary Public in and for the State of ___________ at Large, hereby certify that __________________________, whose name is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, they executed the same voluntarily on the day the same bears date. Given under my hand and seal this _________ day of ______________________, 20__. _____________________________________________ Notary Public My Commission Expires:_________________________ [SEAL]   EXHIBIT “A” FINANCIAL STATEMENT OF ____________________________ (As of ___________  ___, 20___)   ASSETS

LIABILITIES

  OTHER ASSETS: _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ EXHIBIT “A” [Continued] FINANCIAL STATEMENT OF ____________________________ (As of ___________  ___, 20___)   EXHIBIT “B” FINANCIAL STATEMENT OF ____________________________ (As of ___________  ___, 20___) ASSETS

LIABILITIES

  OTHER ASSETS: _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________   EXHIBIT “B” [Continued] FINANCIAL STATEMENT OF ____________________________ (As of ___________  ___, 20___)   Exhibit “C” Other Special Provisions

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