PRENUPTIAL AGREEMENTS & SPOUSAL CONTRACTS

Are you planning on getting married? If so, consider a prenuptial agreement between prospective spouses made in contemplation of marriage. Some people feel that prenuptial agreements are unromantic - a sign of distrust, not love. Drawing up a prenuptial agreement together is a sign of incredible trust and financial openness.

What happens, legally, when you get married?
The Family Property Act states that any property acquired during the marriage is divisible between spouses, no matter who acquired it or who holds title to it. The Homesteads Act gives each spouse an occupancy interest and a life estate in the couples’ home, independent of who holds title to the property. Your last will and testament becomes void unless it states that you made it in contemplation of your marriage. The Intestate Succession Act provides for transfer of the estate of a deceased spouse if there is no will. Children from a prior relationship inherit, at most, one-quarter of the estate. If the estate is $100,000 or less, children inherit nothing, the spouse gets it all. Various pensions may force a division of one spouse’s pension with the other spouse.

What may be involved in a prenuptial agreement?
Most couples enter into these agreements to fix their rights to property owned by each, both before and during the marriage. Before you talk to a lawyer, discuss what you want to include in the prenuptial agreement. Each of you should have your own lawyer. Be honest - concealment of any asset or debt can invalidate your prenuptial agreement.

• Do you have assets? How do you want to share them with your spouse, whether acquired before or after the marriage?

• Do you have property which you wish to “keep in the family”, such as a farm or cottage?

• Do you own a business? How do you want to share it with your spouse?

• Do you have children, or other dependents, from a previous relationship? Do you want them to inherit from you?

• Do you have family heirlooms that are important to you and to your ancestors?

• The disposition of property upon separation, marital dissolution, or death.

• The modification or elimination of spousal support. (Note that prenuptial agreements may not affect the right of either party to receive child support).

• The rights of either party under a will or trust created by the other party.

• The ownership rights in and disposition of the death benefit from a life insurance policy.

If you are living with a partner without being officially married, you should sign a cohabitation agreement.

Common Law Concerns.
If you have cohabited continuously for two years or more, your existing Will made prior to the two year anniversary date of the commencement of common law relationship may be null and void.

If you have cohabited continuously for two years or more, and die without a Will, your common law spouse becomes your sole beneficiary under certain circumstances. This legislation may completely disinherit your children.

The family property rules that apply to married couples also extend to couples who are cohabiting or have cohabited for two years or more. You and your common law spouse may wish to consider an Inter-spousal Contract or Cohabitation Agreement.