Free Postnuptial Agreement

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Postnuptial Agreement

Surviving Spouse's Inheritance


Surviving Spouse's Inheritance



Frequently Asked Questions
What does it mean to restrict what the surviving spouse inherits?Restricting what the surviving spouse inherits means that they will only inherit what is given in their spouse's Last Will or the Postnuptial Agreement, and that they agree to not make a claim on the other's estate.How common is it to restrict what my spouse inherits?Most customers do not restrict inheritance.

Restricting what your spouse inherits is done so more of your estate can be given to other parties. For example:
  • If you want to ensure your children, especially any dependent children or children from a previous relationship, are provided for.
  • If the surviving spouse will be financially secure without any inheritance.
You are not required to include additional inheritance rights as they may be dealt with in your Last Will and Testament. However, if you want a greater assurance you or your spouse will receive a right, you may include them here.

Examples of additional inheritance rights include:
  • Right to death or survivor benefits under any government or employer pensionpension
  • Right to live in the shared home until death;
  • Right to specific property; and
  • Right to a specific sum of money.


Your Postnuptial Agreement

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_______   _______ Page of

POSTNUPTIAL AGREEMENT

THIS POSTNUPTIAL AGREEMENT (the "Agreement") MADE ON THIS ________ day of ________________, ________

BETWEEN:

______________________
of _________________________

- AND -

______________________
of _________________________

  1. BACKGROUND
  2. This Agreement is made between ______________________ and ______________________ (collectively the "Parties" and individually a "Party") who are married to each other.
  3. The Parties intend for this Agreement to become effective upon execution by both Parties.
  4. The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
  5. The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
  6. The Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Federal or State legislation, will not apply to them.
  7. The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
  8. The Parties also acknowledge that they have had the opportunity to retain their own lawyer and to receive independent legal advice regarding the terms of this Agreement.
  9. The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
  10. Each Party agrees and affirms THAT:
    1. The Parties did execute this Agreement voluntarily;
    2. This Agreement was not unconscionable when it was executed;
    3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
    4. They have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
    5. They entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
  11. The Parties acknowledge that this Agreement will continue upon termination of marriage whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

  1. PROPERTY
  2. The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
  3. All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
  4. Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property") except where:
    1. it is Shared Property; or
    2. there is proof of shared legal ownership.
  5. Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
  6. Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
  7. DEBTS
  8. The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
  9. All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
  10. Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts") except where:
    1. it is Shared Debt; or
    2. there is proof of shared legal responsibility.
  11. MATRIMONIAL PROPERTY RELEASE
  12. The Parties covenant and agree that they are aware of the equitable distribution laws of the Commonwealth of Virginia, and that it is their intention that the equitable distribution laws will not apply to the status, ownership, interest and division of their property, either jointly or separately owned, nor to their future property, whether real or personal, and owned by either one or both of them, and the Parties further covenant and agree that it is their desire and intent by the terms of this Agreement to contract out of the equitable distribution laws of the Commonwealth of Virginia, and to make a full and final settlement of all matters of property, both real and personal, previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.
  13. DOWER, CURTESY AND HOMESTEAD RELEASE
  14. Each Party releases all dower, curtesy and homestead rights under any statute of the Commonwealth of Virginia, or any other jurisdiction whatsoever, that, but for this agreement, each would have in and to property in the name of the other, or in their names jointly or as tenants in common.
  15. SPOUSAL SUPPORT
  16. In the event of a separation the Parties agree that spousal support may be payable to one of the Parties on the basis of the Party's financial circumstances at the time of separation or otherwise. It is understood and accepted by each Party that spousal support will be determined according to the appropriate Federal or State laws.
  17. ESTATES AND TESTAMENTARY DISPOSITION
  18. Nothing in this Agreement will limit or affect any rights that each may acquire as spouse or surviving spouse in the property, assets or estate of the other spouse.
  19. Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
  20. SEVERABILITY
  21. Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
  22. INTENTION OF THE PARTIES
  23. Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
  24. DUTY OF GOOD FAITH
  25. This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
  26. FURTHER DOCUMENTATION
  27. The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
  28. TITLE/HEADINGS
  29. The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
  30. ENUREMENT
  31. This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
  32. GOVERNING LAW
  33. The laws of the Commonwealth of Virginia will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
  34. TERMINATION OR AMENDMENT
  35. This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
  36. ENTIRE AGREEMENT
  37. The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on the ________ day of ________________, ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

_____________________________
Lawyer
Printed Name: _________________

________________________
______________________

_____________________________
Lawyer
Printed Name: _________________

________________________
______________________


_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________

_____________________________
Witness
Printed Name: _________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE


THE COMMONWEALTH OF VIRGINIA
COUNTY OF
_________________


I, _________________________, of the City of ___________________, in the Commonwealth of Virginia, Barrister and Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Postnuptial Agreement, separate and apart from ______________________, as to his or her legal rights and liabilities under the terms and conditions of it, and that I acted solely for him or her, and explained fully to him or her the nature and effect of the said Postnuptial Agreement and he or she did execute it in my presence, and did acknowledge and declare that he or she was executing it of his or her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in The Commonwealth of Virginia, this _____ day of _________, 20___.

________________________
BARRISTER & SOLICITOR
Print Name: _________________





I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.


________________________
______________________


CERTIFICATE OF INDEPENDENT LEGAL ADVICE


THE COMMONWEALTH OF VIRGINIA
COUNTY OF _________________


I, _________________________, of the City of ___________________, in The Commonwealth of Virginia, Barrister and Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Postnuptial Agreement, separate and apart from ______________________, as to his or her legal rights and liabilities under the terms and conditions of it, and that I acted solely for him or her, and explained fully to him or her the nature and effect of the said Postnuptial Agreement and he or she did execute it in my presence, and did acknowledge and declare that he or she was executing it of his or her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in The Commonwealth of Virginia, this _____ day of _________, 20___.

________________________
BARRISTER & SOLICITOR
Print Name: _________________





I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.


________________________
______________________

What is a Postnuptial Agreement?

A Postnuptial Agreement is a written contract two spouses create after entering into a marriage while they’re committed to one another. Spouses use Postnuptial Agreements to outline the division of their assets and responsibilities if they separate or divorce.

Within a postnup, you can also outline inheritance in case of a spouse's death. Thinking about inheritance is most important for couples with children from past marriages.

A Postnuptial Agreement is similar to a Prenuptial Agreement because both documents outline the terms of a potential separation or divorce. However, a Postnuptial Agreement is distinctive because you create one after you’ve married your spouse. In contrast, you can only create a prenup before you marry.

A Postnuptial Agreement is also known as a:

  • Postnup
  • Postmarital agreement
  • Marriage contract

Does using a Postnuptial Agreement mean I have to divorce?

No, not at all. Creating a Postnuptial Agreement doesn’t mean that your marriage will end. Within most marriages, there is always a chance of separation or divorce. Regardless of whether you create a postnup, you and your spouse are in control of your relationship’s future.

In many cases, a postnup is a just-in-case document. You may never reference your Postnuptial Agreement or present it to a judge.

Some couples may recognize that, statistically, many marriages end. They may understand the possibility of separation or divorce and plan ahead to prevent future conflict. Being realistic and planning ahead doesn’t mean a relationship is destined to end.

However, if you and your spouse are contemplating separation, you should not use a postnup. Instead, use a Separation Agreement. Creating a postnup in contemplation of separation could invalidate your postnup.

Why are Postnuptial Agreements important?

Postnuptial Agreements protect both spouses’ interests and encourage honest communication. More specifically, having a Postnuptial Agreement in the event of a separation or divorce can:

  • Protect both spouses’ finances and assets
  • Establish ownership of a home or business
  • Protect both spouses’ emotions and mental health
  • Save both spouses money
  • Prevent ongoing court battles
  • Minimize arguments

What assets can I divide in a Postnuptial Agreement?

In a Postnuptial Agreement, spouses outline the division of their shared property (also known as shared assets). Shared property refers to assets that the parties co-own. Many assets become shared property once you marry your spouse. These shared assets may include:

  • Real estate property purchased during the marriage
  • Retirement savings or retirement plans
  • Stocks purchased during the marriage

In your agreement, determine how to divide these assets, as well as any future shared property.

How do I create a Postnuptial Agreement?

Create a Postnuptial Agreement by using our printable template. Fill out our questionnaire and provide the following information.

1. Party information

First, provide both spouses’ names and home addresses.

2. List of separate assets

Provide a list of each spouse’s separate assets. Separate assets are owned by one party who will retain control of them in the event of a separation or divorce.

3. List of shared assets

Provide a list of shared assets. Shared assets are assets that the parties co-own. In the event of a breakup, shared assets are typically divided between spouses or one party pays half of the asset's value to the other party.

4. Division of shared assets

Determine and specify the division of the shared assets. By default, courts will distribute assets either 50/50 or equitably (i.e., fairly). Equitable distribution doesn't always result in a 50/50 split. The default method will depend on your state. You can also decide to divide a shared asset based on each party’s financial contribution towards the asset.

5. List of separate debts

Provide a list of each spouse’s separate debt. Each party is solely responsible for their own separate debt in the event of a breakup.

6. List of shared debts

Provide a list of the shared debts. Shared debts (also known as joint debts) are debts that both parties are legally responsible for in the event of a breakup, such as co-signed loans, joint credit cards, and mortgages.

7. Division of shared debts

Determine and specify the division of the shared debts. Most spouses split shared debts equally.

8. Information for dependent children

Provide information for the spouses’ dependent children and dependent children from past relationships. A dependent child is a biological or adopted child that the parents have a legal obligation to support. Generally, a dependent refers to a child under the age of 18 years.

It’s important to include dependent children in Postnuptial Agreements because they can have an inheritance or other rights that could impact the agreement.

9. Spousal support terms

Outline the terms for spousal support. Spousal support, also known as alimony or spousal maintenance, is a financial payment made by one spouse to the other in the event of separation. Spousal support helps the spouse with a lower income maintain their standard of living until they can earn a higher income to support themselves.

The amount and length of spousal support payments depend on several factors, such as:

  • The marriage’s duration
  • The lower-earning spouse’s future earning potential
  • Individual contributions during the marriage
  • Each party’s health

Addressing spousal support in your Postnuptial Agreement is completely optional. If you don't make a decision, the applicable state or federal laws will determine your spousal support at the time of your breakup.

10. Terms for a surviving spouse’s inheritance

Depending on your circumstances, you may restrict what you and your spouse can inherit from each other’s estate. Often, people restrict their spouse’s inheritance so their estate can be given to other parties. For example, if someone wants to ensure the care of their children from a previous relationship, they may restrict their spouse’s inheritance.

Restricting the surviving spouse’s inheritance means that they will only inherit what is given in their spouse's Last Will or the Postnuptial Agreement. Also, it means that they agree not to claim the other’s estate.

Can I include a pet in a Postnuptial Agreement?

Yes, you could include a pet in a Postnuptial Agreement because pets are considered property. Depending on your circumstances, one spouse may retain control If you and your spouse are co-owners of a pet and your relationship ends, use a Pet Agreement to settle disputes over the pet’s care.

Is a Postnuptial Agreement legally binding?

A Postnuptial Agreement is a contract between spouses. Therefore, courts enforce Postnuptial Agreements like other contracts.

To be legally binding, Postnuptial Agreements must follow these requirements:

  • The agreement wasn’t obtained through fraud, duress, deceit, coercion, mistake, or misrepresentation
  • The spouses fully disclosed their finances and all material facts
  • The agreement’s terms are fair and equitable

Additionally, adequate consideration is required in most states. This generally means that both sides must give up something and receive something in exchange.

When can I create a Postnuptial Agreement?

You can create a Postnuptial Agreement at any time during your marriage. Postnuptial Agreements can be useful in both new and established marriages. If you need an agreement prior to marriage, use a Prenuptial Agreement.

Don’t use a Postnuptial Agreement if you’re contemplating separation or divorce. If you want to outline the terms of a separation or divorce, use a Separation Agreement. In some cases, creating a Postnuptial Agreement in contemplation of divorce could invalidate the contract.

If you aren’t married and have no plans of getting married, use a Cohabitation Agreement before you move in and combine assets with a partner to establish your financial security.

Where can I use a Postnuptial Agreement?

You can create a Postnuptial Agreement in almost every state. You can create a Postnuptial Agreement in the following states and territories:

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Florida
  • Georgia
  • Guam
  • Hawaii
  • Idaho
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • North Dakota
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • U.S. Virgin Islands
  • Utah
  • Vermont
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin
  • Wyoming

Is a court bound to spousal support terms in a Postnuptial Agreement?

Generally, a court will uphold a waiver of spousal support so long as the waiver was made knowingly, willingly, without coercion, and isn’t blatantly unfair to one party. If any of these has occurred, the court may find the waiver unenforceable and order spousal support.

If a court finds the waiver of spousal support unenforceable, LawDepot includes a severability clause in your Postnuptial Agreement to ensure that the rest of your agreement is still enforceable.

Related documents:

  • Separation Agreement: Outline the division of property and debts, child custody and visitation, and more in case you and your partner separate or divorce.
  • Prenuptial Agreement: Outline the division of your and your spouse’s assets and responsibilities before you marry in case you separate or divorce.
  • Online Divorce: Prepare the necessary documents for a no-fault, uncontested divorce.
  • Last Will and Testament: Control how your assets are distributed after you pass away.
  • Cohabitation Agreement: Protect your assets and create financial terms similar to a prenup when you're in a long-term, unmarried relationship.
  • Roommate Agreement: Divide expenses such as rent and utilities between roommates, and address terms such as household rules and duties.
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