A postnuptial agreement (in Colorado law, a “marital agreement”) is a contract between spouses, signed after the wedding, which decides how their property will be treated at divorce or death. It can do most of what a Prenuptial Agreement does, and Colorado applies the same uniform act to both.
Why Married Couples Sign One
Most postnuptial agreements we see are part of estate planning, and few are a response to trouble in the marriage. Common reasons include:
- a second marriage in which each spouse wants their own estate to pass to their own children, and both spouses agree to waive the rights a surviving spouse would otherwise have in the other’s estate;
- an inheritance or a family property (e.g., a cabin held in a Family Cabin LLC) which the receiving spouse wants to keep separate;
- a spouse starting or buying into a business, where the other owners want assurance that an interest will not be divided in a divorce; and
- a prenuptial agreement which was never signed, or that no longer reflects the couple’s circumstances.
Requirements
A postnuptial agreement must be in writing and signed by both spouses, and each spouse must sign voluntarily with access to independent counsel and adequate disclosure of the other’s finances. Because spouses already owe each other a duty of good faith, the disclosure should be complete. Elkhorn Law can represent one spouse, or, with the informed written consent of both, represent the couple together, and either spouse remains free to have their own attorney review the agreement.
When we prepare a postnuptial agreement for an estate planning client, we review the client’s Will, Trust and beneficiary designations so that they match the agreement.