Under Indiana law, prenuptial agreements are favored and enforceable as contracts, and no additional consideration (or 'benefit of the bargain') is needed, beyond the marriage of the parties to the agreement.
A well-written prenuptial agreement can allow spouses to essentially ‘opt out’ of the statutory regime, and the uncertainty regarding the division of debts and assets upon divorce, and to create their own method of dealing with individual and joint property in the event of divorce, based on their own personal circumstances. A prenuptial agreement may also allow for deviation from statutes relating to one spouse’s rights of inheritance upon the death of the other spouse, among other things.
A prenuptial agreement best practice is when both parties, far in advance of the wedding, provide full disclosure of their respective debts and assets, and when each party obtains the independent advice of an attorney of his or her choice in drafting and finalizing the agreement.
Indiana is a ‘marital pot’ state. This means that, absent a prenuptial agreement, all property that either spouse owns at the time of a divorce is considered to be marital property, regardless of how the property is titled (jointly or individually) or how it was obtained. Gifts, inheritances, pre-marital property, individual debts such as student loans, and all other forms of property are considered marital property and subject to division. The law contains a rebuttable presumption that all marital property should be divided evenly between divorcing spouses.
Although the statutes and published cases provide some guidance and a range of results that can be expected regarding the division of property upon divorce, there is always some uncertainty in allowing a court to decide, after a contested court hearing, which spouse should receive what property.
Many people are surprised that the definition of marital property is so expansive, and are troubled by the uncertainty surrounding the distribution of property in the event of a divorce. A prenuptial agreement can be a very effective tool that can serve to provide a more definite formula or set of criteria for determining how property should be divided upon divorce. In providing an increased level of certainty, a prenuptial agreement can also allow one spouse to protect pre-marital property, or exclude, for instance, an inheritance, from division as a marital asset upon divorce. Many couples choose to indicate that in the event of divorce, each will keep his or her individual property, and that only property accrued during the marriage will be divided.
Although it may not seem romantic, entering into a prenuptial agreement can protect both spouses, as it gives each spouse more certainty and clarity regarding what would happen if a divorce were to occur, which in turn allows each spouse to make well-informed financial decisions during the course of the marriage.
Rights of Inheritance
Indiana law provides that when a married person dies and fails to leave a minimum level of property to his or her spouse, the surviving spouse may make a spousal election against the will and is entitled to a certain percentage of the deceased spouse's property. Indiana law also provides for a certain spousal allowance for the surviving spouse.
These rights, however, may be waived in the context of a prenuptial agreement. If both parties agree, a prenuptial agreement can allow for each spouse to create his or her estate plan as he or she chooses; whether or not he or she chooses to leave part, all, or none of his or her estate to the surviving spouse.
In addition to rights of inheritance and property rights upon divorce, there are other, less common provisions that a prenuptial agreement may contain.
Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this website is intended to substitute for legal representation.