When someone says they don't have an estate plan I remind them that isn't true. Idaho has one for you as a default. If you want the state to determine what happens with your estate when you die all you have to do is - nothing. So it's really a question of which prenup do you prefer, the one you and your fiance draw up through thoughtful and open discussion or the one Idaho created through it's divorce laws?
Prenuptial agreements are in the same category. If you don't draft one of your own the goverment has one for you whether you like it or not. Forbes online magazine recently covered this very topic in an article titled "Skittish About A Prenup? Like It Or Not, You Already Have One." The author, Jeff Landers makes some very good points including the following:
- Oral prenups are not valid. A prenup must be written and then executed –ideally, in a recordable format.
- Each party to the agreement should have their own independent legal representation. This is actually a requirement, in some states.
- A prenup must be executed voluntarily, and without coercion.
- There must be full disclosure of assets, liabilities, income, etc.
- The agreement must be executed by both parties, preferably in front of witnesses (or a notary). Some attorneys even recommend having a judge witness the signing to make sure that neither party was coerced into signing.
- A prenup cannot be “unconscionable,” meaning too lopsided. If one party is awarded almost everything and the other is to receive a pittance, the agreement is likely to be voided in court . . . however, this point has recently become the subject of much debate
Possible the best argument for the prenup raised by Mr. Landers is worth considering.
"I’d also like to make the case that prenups are good for marriages, as well as divorces. Creating a prenup can initiate conversations with your fiancé that will set the stage for open communication about finances through all your years together. Considering how often money is cited as a cause of marital strife, this puts you way ahead of the game! In fact, thinking about what you’d do in case of divorce might help prevent your ever getting one –and perhaps that makes the “Honey, in case we break up. . . “ conversation the most important part of your wedding plans."
Whatever your situation I would suggest reading the entire article.