Prenuptial and postnuptial agreements as part of estate planning

Some Delaware residents might not be aware of the fact that prenuptial and post-nuptial agreements serve another function besides providing for the division of property in a divorce. These agreements can also be part of estate planning. People who marry later in life — or for the second time — might already have separate property that they want to ensure will be inherited by someone other than their new spouses.

This is often the main reason why couples in these situations will often enter into marital agreements — especially if they have children from a prior relationship. Most states, including Delaware, provide that a spouse will inherit a certain percentage of the deceased spouse’s estate before anything goes to his or her children. That proviso typically applies, unless the spouse waives his or her rights to certain property in a prenuptial or post-nuptial agreement.

Furthermore, prenups and postnups can identify the separate property of each party. Each spouse ordinarily agrees those assets will be considered separate and waives any right to them in the event of divorce or death. This way, each party will have that property to dispose of as he or she sees fit.

These documents can then be accompanied by other documents drafted and executed during estate planning. It is important to note, however, that prenuptial and post-nuptial agreements must be negotiated, drafted and executed in accordance with current Delaware laws. Otherwise, they could be ruled unenforceable by a court when needed. Therefore, it would be a good idea for each party to engage an attorney to ensure that the agreement complies with current law and is in each party’s best interests.

Source:, “Estate Planning: Enforceable marital agreements“, Dennis Fordham, June 18, 2016



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