Estates, Gifts, And Trusts (EGT)

Marital Agreements (Portfolio 849)

  • This Portfolio describes and analyzes three types of agreements: premarital agreements, postmarital agreements, and domestic partnership agreements.


The Bloomberg Tax Portfolio, Marital Agreements, No. 849, describes and analyzes three types of agreements: premarital agreements, postmarital agreements, and domestic partnership agreements. A premarital agreement is a contract between prospective spouses, including same-sex couples, made in contemplation of marriage. A postmarital agreement is a contract executed by parties to an ongoing marriage and not incident to a divorce or marital separation. A domestic partnership agreement, sometimes known as a cohabitation agreement, is a contract executed by a couple whose domestic arrangements may not be state-sanctioned. However, the term also includes such an agreement executed incident to a civil union or registered domestic partnership. Generally, all of these agreements are used to define the property and support rights of the parties upon termination of the marriage or other relationship by death or dissolution. Some parties also opt to include financial obligations during the marriage or other relationship. This Portfolio does not cover separation agreements that settle property rights, spousal and child support obligations, and child custody matters incident to a separation or divorce.

This Portfolio focuses on the requirements for creating and drafting valid marital and domestic partnership agreements, including the permissible scope of such agreements, subjects on which the parties’ contractual rights may be limited, and the role of counsel. Various drafting issues discussed include provisions governing the parties’ rights at death and divorce, spousal support, waivers, financial support of children, attorneys’ fees and costs, and nonfinancial matters. The Portfolio also examines how the parties’ conduct after the execution of an agreement may affect their rights under the agreement. The Uniform Premarital Agreement Act of 1983, which many states have enacted, is covered in detail.

The Worksheets include a number of sample forms illustrating the concepts and provisions discussed in the Portfolio, as well as summaries of state law governing marital and domestic partnership agreements.

This Portfolio may be cited as Ravdin, 849 T.M., Marital Agreements.

Table of Contents

I. Introduction
II. Criteria for an Enforceable Premarital Agreement
III. Postmarital Agreements and Postmarital Amendments to Premarital Agreements
IV. Establishing the Elements of a Valid Agreement
V. Domestic Partnership Agreements
VI. The Role of Counsel
VII. Drafting Provisions for Disposition of Property at Death
VIII. Drafting Provisions for Disposition of Property at Divorce or Dissolution of a Domestic Partnership
IX. Spousal Support Provisions
X. Financial Provisions for Children
XI. Attorneys Fees and Costs
XII. Nonfinancial Provisions and Provisions Regulating the Ongoing Marriage
XIII. The Effect of Post-Execution Conduct on Parties’ Rights
XIV. Other Drafting Issues

Linda Ravdin
Pasternak & Fidis, P.C.
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