Generally, a prenup can deal with the following:
(a) division of property on separation or death;
(b) ownership of property (what is owned jointly and what is owned separately);
(c) inheritance of property;
(d) spousal support obligations; and
(e) the right to direct the education and moral training of their children.
You can include pretty much anything else that is not prohibited. So, for instance, you can require that a spouse designate the other spouse as beneficiary of life insurance policies, RRSPs, and pension plans, or state that a certain residence is to be designated a matrimonial home. Another common issue that people deal with in a prenuptial agreement is what happens to any pets.
There are a number of limitations to what can be included in a prenup. They can’t deal with the following:
(a) custody of or access to children;
(b) child support; and
(c) clauses considered illegal or immoral.
Clauses relating to fidelity or infidelity are generally not enforceable – for instance a clause stating no spousal support is payable if a spouse commits adultery would not be enforced by a court.
Similarly, you can’t put into your prenup any provisions regarding sex during your marriage.
As well, a court is permitted to set aside a provision if the court believes that it is unjust. What may be just now may be unjust twenty years from now, so it pays to carefully consider all possibilities of what can happen in the future.
Can a prenup protect the matrimonial home? In short, yes.
There is a lot of misinformation out there about matrimonial homes. Yes, a prenup can deal with *the ownership* of a matrimonial home. So, for instance, you can set out in your agreement that one person owns the matrimonial home and retains ownership of it if your marriage ends.
However, note that there are two other legal rights to the matrimonial home that cannot be dealt with in a prenuptial agreement: possession and alienation. Possession deals with who has the right to live in the matrimonial home. Essentially, a prenup cannot kick a person out of the matrimonial home, even if they do not own it. Alienation deals with the fact that you cannot sell or mortgage the home without your spouse’s permission. The idea here is that just because a marriage has ended a spouse cannot find themselves kicked out of the matrimonial home or have it sold underneath their feet.
Assets Acquired After Marriage
A question I frequently get is whether a prenuptial agreement can deal with assets that you acquire after you get married. The answer is yes. A prenup can deal with assets, regardless of when they are acquired, either before or after marriage.
Prenups and Wills
A prenup deals with what happens when a relationship ends, and a relationship can end via death rather than separation. So, to a certain extent you can deal with what happens to your assets in regards to your spouse if you pass away. However, you will still need to prepare a will.
Typically, a prenup can deal with your estate in one of five ways:
1. It can require a spouse to leave certain (or all) assets to the other.
2. It can allow the surviving spouse to stay in the matrimonial home for a period of time (even the rest of their life), and set out conditions (e.g. how expenses are to be handled).
3. It can oblige the surviving spouse not to contest a will.
4. It can oblige the parties not to change their wills.
5. It can release the parties from any estate law obligations to each other. This is typically done in remarriages, where the couple may have children from a previous relationship whom they want to inherit their assets.
If you’re not sure what you want, then you can simply deal with everything in your will. If you plan on leaving significant assets to someone other than your spouse, it is best to deal with this in your prenup.
You’re Invited to Call or E-Mail!
If you’re considering a prenuptial agreement — or have already made your decision — you’re invited to call or email us. We’ll explain for free how you can protect your assets and plan your estate. You can call us toll-free at 855-PRENUP-4 or email us using our contact form here. We can help you anywhere in Ontario, including Ottawa, Toronto, Mississauga, Brampton, and Hamilton.