Understanding LGBT PostNuptial Agreements

While many are familiar with “prenuptial agreements,” the concept of “postnuptial agreements” is often more foreign. In this post, we’ll outline what these types of agreements may include, and how this impacts LGBT marriages.

What are postnuptials?

In the exciting rush of planning a wedding and a honeymoon, it can be easy to overlook paperwork such as an LGBT prenuptial agreement. These are documents that spell out the division of assets and liabilities that you acquired before the marriage, and any special instructions for future wealth management. For example, you may wish to confirm that one person’s student loans are their sole responsibility, or that a future inheritance from a grandparent should be dealt with in a certain way. They can also dictate how savings or debt should be managed down the road.

As you may infer from the words themselves, postnuptial agreements are the same type of document, but simply drawn up after a marriage has taken place.

These types of written documents are useful for many reasons. They require couples to sit down together and discuss how they’d like their wealth management to look. This encourages the building of a strong financial foundation together, and can be a useful tool to prevent future conflict.

What is included in a postnuptial?

Each postnuptial agreement is unique, and curated to your family’s specific needs and goals. Some of the things that may be included are:

  • What to do with specific property or other assets
  • How to handle investments
  • Managing inheritance
  • Managing retirement
  • Specific instructions for savings
  • Liabilities such as student loans and credit card debt
  • Legalities of business ownership

Each of these items, and more, may address property that was acquired before the marriage, as well as after. However, you cannot include anything that appears to offer an “incentive” for divorce.

When can you use a postnuptial?

Though there is no “deadline” for submitting a postnuptial agreement, it is advisable to draft them as soon as possible after marriage. California courts will not accept postnuptials if they are drafted during the process of divorce.

Why are postnuptials important for the LGBT community?

California is a community property state. As we stated in our blog post on LGBT prenuptial agreements, community property means that “when a couple marries, the default legal position is that all assets and liabilities acquired during marriage are split 50/50. The law also states that everything acquired before the marriage are meant to be the sole responsibility of the respective individual.” For many couples, this may not be the exact way you’d like to manage your wealth. Postnuptials help you define this in the way that works for you. This is particularly important for the LGBT community, who are more likely to have had a long-term relationship before getting married, and thus may have more complexities in their shared wealth management.

Further, though gay marriage is now here to stay, there are many other laws related to LGBT families that are on less solid ground. We advise that the LGBT community legally protect themselves when possible, such as through strong postnuptials.

Conclusion

Drafting a solid set of postnuptial agreements can set a marriage up for success. It helps to ensure that the couple has discussed many of the “what-ifs” that entering into a marriage can bring up. Do you think postnuptials may benefit your family? Contact us for a free consultation by calling 1-800-LAW-LGBT or visiting our West Hollywood or Palm Springs LGBT law centers.