Why Prenups Are Important for LGBTQ+ Couples

As the LGBTQ+ community celebrates victories in achieving marriage equality, the importance of prenuptial agreements for same-sex couples cannot be overlooked. While prenups work the same for LGBTQ and heterosexual couples, prenuptial agreements can be particularly important to same-sex couples due to the unique legal challenges they may face.

A prenuptial agreement is a legally binding document created by couples before marriage to outline asset and debt division in the case of divorce. While they may not be the most exciting part of marriage, prenups serve as a practical and necessary tool for protecting both parties' interests. For all couples, a prenuptial agreement can cover a wide range of financial interests, including but not limited to:

  • Property: If one or both parties own real estate, a prenup can determine how it will be divided should a divorce occur.
  • Business interests: A prenuptial agreement can describe how the business will be valued and divided between couples who own businesses.
  • Investments: Prenups can specify how investments, stocks, and other financial assets will be distributed in case of a divorce.
  • Inheritance rights: For couples who have received or expect to receive inheritance, a prenuptial agreement can protect the inheritance from being divided in a divorce.
  • Alimony and spousal support: A prenup can establish whether a party will pay alimony or spousal support and in what amount.
  • Debt Allocation: A prenup can address how debts accumulated during the marriage will be divided.

Why Same-Sex Couples Should Get a Prenup

While prenuptial agreements function the same for both LGBTQ+ and heterosexual couples, they hold particular significance for same-sex partners for several reasons.

Statistically, same-sex couples often marry later in life than heterosexual couples. This means they may have accumulated significant assets and debts before marriage. A prenup can help to predetermine property division and spousal support in divorce, ensuring a fair and equitable outcome for both parties.

Additionally, same-sex couples may choose to adopt. Prenups can help to protect the future interests of adopted children. While child custody and support clauses cannot be included in most prenuptial agreements, certain provisions can indirectly affect the child's well-being, such as keeping assets separate, providing for alimony, and ensuring assets are passed down to adopted children in case of death. In states like New York, there may be limited circumstances where child matters can be included in a prenuptial agreement.

Prenups can also offer financial protection for children from prior relationships. Without a well-designed prenuptial agreement, a portion of assets could go to an ex-spouse in the event of a divorce, potentially impacting the financial support and inheritance of children from a previous marriage. By establishing clear terms in a prenuptial agreement, same-sex couples can ensure that their children are protected and provided for.

Another reason for same-sex couples to consider a prenuptial agreement is the concern regarding potential future reversals of the Supreme Court's decision on same-sex marriage. A prenuptial agreement can provide assurance and legal protection in such an eventuality, ensuring that regardless of legislative changes, both parties are safeguarded in the event of a separation.

Tips on Creating a Solid Prenup

It is important for LGBTQ couples to understand the importance of creating a prenup that reflects their unique needs and circumstances. Here are some tips on creating a working prenup.

First, be honest with each other. Transparency is key to creating a fair and legally binding prenup. Discuss your goals for the marriage and the prenup, and make sure both partners are on the same page. Be honest and open with each other about your financial situation.

Also, be prepared to compromise: Both partners should be willing to give and take in order to create a prenup that benefits both parties. The objective of a prenup is to protect both partners in the event of a divorce, so it is important to approach the process with collaboration and mutual respect. Creating a prenup is a negotiation, and it is important to allow for compromise.

Finally, hire an experienced attorney. When creating a prenup, it is crucial to work with an attorney who is experienced in drafting prenups for LGBTQ couples. An experienced matrimonial lawyer can help you understand your legal options and draft a prenup tailored to your specific needs. They can also help you navigate any legal complexities that may arise during the process.

Prenuptial agreements are a valuable tool for LGBTQ+ couples seeking to safeguard their financial interests and protect their loved ones in case of divorce. By taking the time to create a prenup, couples can marry with peace of mind, knowing that their assets and family members are taken care of.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 35 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, Crain's New York Business magazine, and New York magazine.

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