A prenuptial agreement is an agreement that lays out exactly what the terms of a couple’s separation would look like. The agreement can deal with issues such as spousal support obligations, ownership of property, inheritance, the division of matrimonial assets, and directions as to the education and moral training of any children arising from the union.
A prenuptial agreement may not include terms dealing with child support, child custody and/or access, clauses regarding infidelity or sex, and anything considered immoral or illegal.
A postnuptial agreement is basically the same type of agreement but is an agreement made after the partners have married.
A prenup or postnup can affect some rights to the matrimonial home but not others. Ownership of the family home can be dealt with in such an agreement. It is possible to agree that one partner owns the matrimonial home and retains that ownership if the marriage ends.
A prenup or postnup cannot deal with two other rights to the matrimonial home: possession and alienation. Possession refers to the right of the partners to live in the matrimonial home. Even if one partner does not own the home and the other does, neither can be kicked out of the home by the other. Alienation refers to the need for both partners to agree to any sale of the home before that sale can take place.
Parties can not agree to waive these rights in a prenup or postnup agreement. Effectively, neither party, despite any prenup or postnup agreement in place, can be kicked out of the matrimonial home or have it sold out from under him/her.
In short, yes. When a relationship ends via death instead of by separation, terms including what happens to one’s assets relative to their spouse when they pass may come into play.
Prenups or postnups can include terms dealing with your estate such as:
- Which assets one spouse leaves to the other;
- The length of time that the surviving spouse is allowed to stay in the matrimonial home and the conditions under which this would take place;
- Whether or not the surviving spouse is able to contest the will;
- Whether the spouses are obligated to refrain from changing their wills; and
- Whether the spouses are releasing each other from any estate law obligations to each other.
It is recommended that you enter into a prenup or postnup if you are planning to leave significant assets to someone other than your spouse. It is also important to ensure that the terms included in the prenup or postnup match those included in the parties’ wills.
Tailor Law offers a free 30 minute consultation in which you can meet with a Toronto prenup and postnup lawyer and discuss your options for drafting an agreement that best addresses you and your partner’s needs going forward. Give us a call anytime as 905-366-0202 to book your consultation.