Pennsylvania prenuptial agreements treated like ordinary contracts

Pennsylvania is considered unique in the way it treats premarital agreements like other contracts.

Pennsylvanians in the process of wedding planning may not consider how money and assets will be handled during marriage, or what happens financially if marriage ends or when one spouse dies. Focus on the personal relationship is natural, but marriage is a legal and economic partnership and that aspect should be understood before marriage.

State laws dictate matters like how property is divided in divorce, when alimony is appropriate and when a spouse may elect to take a preset share of the property in his or her deceased spouse's estate, despite the will.

The prenuptial agreement (or premarital agreement) is an increasingly popular option for engaged people who want to enter into a personal contract to decide for themselves how these economic issues will be handled. Typical matters covered by so-called prenups include:

  • A prospective spouse may want his or her share in a family business to go to his or her family of origin at death or divorce, rather than the spouse.
  • In a second marriage, a prospective spouse may want certain assets to go to children of a previous marriage instead of the new spouse.
  • A prospective spouse who is wealthy or will receive an inheritance may want to limit the amount of money or assets to which the new spouse would be entitled.
  • Prospective spouses who are both economically established may prefer to keep finances and assets legally separate after marriage.
  • A prospective spouse may want to limit how much alimony he or she would owe upon divorce.
  • A prospective spouse may want to set aside funds to care for an elderly or disabled person.
  • A prospective spouse may want ensure that he or she is not liable for significant debts of the other.

Prenuptial agreements have a negative reputation because they can put a damper on romance. Prenups are seen by some as a way for one spouse to get out of properly providing for the other, detracting from the sanctity of the relationship.

Historically, the prenup has sometimes been unfair to one of the parties such as when one future spouse springs it on the other at the last minute, creating pressure to sign away rights without the opportunity for reflection or to consult a lawyer.

For this reason, some states look at prenups with heightened scrutiny to be sure the signing was not under duress, both had time to seek legal advice, the more financially savvy party did not exploit the other, the parties completely divulged their money and assets, and so on. In such a state, it may be possible to challenge the validity of such an agreement in court.

Pennsylvania, however, treats premarital agreements like other arms-length contracts between equal parties. Pennsylvania prenups are not subject to heightened scrutiny, but rather only require that each party completely disclosed its assets before signing (or the other party already knew of the assets or waived disclosure in writing) and that signing was voluntary.

If the party to a prenup can show by clear and convincing evidence that these requirements were not met, a court can find it unenforceable. (Presumably, the court could also invalidate based on contract law an agreement based on misrepresentation or duress.) The court, however, may modify provisions related to children's issues like custody and child support if there are "changed circumstances."

Any Pennsylvanian considering a prenup or with questions about financial rights in marriage should consulting an experienced family lawyer.

Keywords: Pennsylvania, premarital agreement, prenuptial agreement, contract, marriage, divorce, death, money, property, asset, spouse, lawyer