Why Same-Sex Couples Should Consider a Pre-Nuptial Agreement

Last week, the U.S. Supreme Court denied petitions to review same-sex marriage decisions from Federal Circuit Courts around the country. This allows the current rulings in each Federal Circuit Court to remain in effect, including the 7th Circuit decision in Walker v. Wolf, which held that Wisconsin’s same-sex marriage ban was unconstitutional. As a result, same-sex couples in Wisconsin may now legally marry in our state and take advantage of entering a prenuptial agreement. In addition to prenuptial agreements, Wisconsin also recognizes postnuptial agreements entered into after the parties are legally married. Either type of agreement is referred to as a Marital Property Agreement (MPA) in Wisconsin.

There are many benefits to entering a Marital Property Agreement, regardless of whether the couple is same or opposite sex. Foremost, a MPA allows the couple to decide how to hold and distribute property along their own terms. Wisconsin is a community property state, which means that without an agreement stating otherwise, each spouse has a one-half interest in all property acquired during the marriage regardless of how the property is titled. With a MPA, the couple may “opt-out” of this marital property system and choose to keep property as the individual property of one spouse.

A MPA may set forth terms regarding the couple’s property at the time of death or at the time of divorce. MPAs can be a necessary step to support a spouse’s estate plan, especially if either party has children from a previous relationship. If the MPA categorizes property as the spouse’s individual property, such property can be passed on to the children (or any beneficiary other than the spouse) without a marital property component. Clear terms regarding property ownership in the MPA can lessen any conflict between the surviving spouse and children of the deceased spouse during an already difficult time.

A MPA may also include terms regarding property division and spousal support at the time of divorce.  Although difficult to discuss when planning a wedding or engagement, taking the time to discuss money and property issues before the emotional confusion of a separation can save both money and distress at the time of divorce. It also allows both spouses to enter the marriage on the same page about how to handle money and the ownership of property during the marriage. It is important to discuss your specific financial circumstances with an attorney who is knowledgeable in both divorce law and estate planning before entering into a MPA. If you are considering a prenuptial agreement, please contact a member of the Stafford Rosenbaum Family Law or Trust and Estates Team. 

With offices in Madison and Milwaukee, Stafford Rosenbaum LLP offers a full array of legal services to businesses, governments, and individuals.  As we celebrate our 135th anniversary, effective communication continues to be at the heart of our practice.  Find out more at www.staffordlaw.com and on LinkedIn