Do we (New Yorkers) need a prenup?
September 20, 2016 11:07 PM   Subscribe

We are getting married- yay! We live in NYC and are planning to stay for at least 5 years and hopefully forever. I've read past threads and other info about prenups and I think we could go either way. The big question is handling inheritances.

The main reason we both thought of a prenup is that I am about to receive (before we get married) an inheritance from a grandparent (in the $100-400K range). However, New York is an equitable distribution state, meaning that this inheritance would be considered mine in the event of a divorce. We do plan to use it on a down payment for an apartment where we would both be on the title. In the long term, I probably stand to inherit more than he does in the future though I expect nothing with aging parents, rising cost of care etc.

Other details:
I make 40% more than him but for a number of reasons I could see that leveling out in the next few years. I also have 2x as much student loan debt. I do not foresee us divorcing! He is previously divorced, done with alimony, and that was all handled in a friendly way. Should we divorce, I would expect to split everything except inheritances, and gains from inheritance-related investments. These are meaningful but not millionaire-making sums of money, which makes me think we don't need a prenup.

TL;DR do New York's laws make it so a prenup isn't really necessary for us?
posted by anonymous to Human Relations (12 answers total) 2 users marked this as a favorite
Are you sure you will always live in New York? Real life example: friends of mine were married in New York, moved to the Netherlands two years later, divorced after fifteen years there. There was an extended fight about the jurisdiction of the divorce-- and since NL is an absolute common property country, the outcome really mattered. A prenup would have sidestepped all of it.

But I'm a shameless fan of prenups, I need to say. I really wish I had insisted on it when we married.
posted by frumiousb at 11:20 PM on September 20, 2016 [4 favorites]

Better to have a prenup and not need one, than need one and desperately wish you had one. Get the prenup.

Someone once told me -- or I once read -- that prenups are generally hammered out when the people who might need them are most positively inclined toward fairness and kindness to each other. What better time to agree on how to distribute assets should those circumstances change?

Mazel tov, and may you never need to use it!
posted by Countess Sandwich at 11:57 PM on September 20, 2016 [17 favorites]

Divorced in NY here. Get the prenup. Cannot hurt. One less thing to worry about.
posted by AugustWest at 12:20 AM on September 21, 2016 [1 favorite]

The thing is that the laws in the jurisdiction where you marry/reside/divorce ARE A PRENUP and the question isn't "do we want a prenup" but rather, do we want to follow this prenup or draw one up that accurately reflects our specific finances and family/inheritance nuances?
posted by kate blank at 3:30 AM on September 21, 2016 [14 favorites]

No one expects to divorce and yet so many do. And having a non-contentious divorce in the past is no guarantee than future divorces won't be knock down drag out fights. That both of you would be okay with having a prenup is so lucky (nothing worse than one person wanting one and the other feeling the prenup means they aren't trusted, loved, expected to stay married, etc). So get one and then work hard on your marriage so you never need to use it.
posted by cecic at 4:40 AM on September 21, 2016 [2 favorites]

Would you rather decide together how to handle things if your marriage ends, or would you rather leave that decision to a bunch of elected and appointed officials who you don't know and don't know you?
posted by spindrifter at 5:07 AM on September 21, 2016

Yes yes yes the answer to a prenup is always yes.
posted by lydhre at 6:54 AM on September 21, 2016 [1 favorite]

I do not know what the laws in New York are, and this is not legal advice for you personally, but in my common law jurisdiction it is important to keep inheritances segregated from any shared accounts. Once any inheritance goes into a shared account, it becomes property of the marriage, and game over. If, however, it remains in its own account, and only under the control of the beneficiary, then it is not likely to be seen as property of the marriage. (Of course, the beneficiary can do whatever they please with that money.) But again -- this is not legal advice for you personally, and I do not know if it would be the same for the State of New York.
posted by Capt. Renault at 7:06 AM on September 21, 2016 [1 favorite]

My views on prenups (as a now-single mother) is that they should not protect the person with the money, but the person who sacrifices for the relationship. They should stipulate that if person A gives up career/money/etc for the relationship/care-giving/etc., then person B should continue to provide the same level of support to the extent that A is financially compromised by the sacrifice. This is sort of the opposite of what most pre-nups say, which is that if you come in disadvantaged you leave disadvantaged, regardless of what you've done to *stay* or become *more* disadvantaged for the sake of the relationship.

How old are you? Are there children, or others needing care, or a major job shift in your present or future? If any of this applies to your or your husband, I'd suggest you consider that as you draw up a prenup.

Also, kate blank has it right: the laws of the jurisdiction governing your divorce are a prenup, and you really can't tell which jurisdiction you'll be in then (or what the laws will be then) but they'll still cover you. Draft your own and avoid that problem, now while you're still inclined to be fair.

Best of luck never needing this :)
posted by Capri at 10:58 AM on September 21, 2016 [2 favorites]

Both my husband and I have received modest inheritances during our relationship. We were both advised quite firmly that in the event of a divorce, inheritance money would be our own---unless we put it into a property. The 'marital home' is a special category of thing where we live, and it doesn't matter whose money paid for it. If I were to put an inheritance toward such a purchase, it would be a joint asset in legal terms. So do your research! In a case like ours, a prenup wouldn't matter. My inheritance is legally my money by the laws of the land, unless we buy a property with it, the end. A prenup would in no way change that.
posted by ficbot at 2:46 PM on September 21, 2016

Marriage is the only contract that changes as you move location. Pre-nup will not change; get the pre-nup.
posted by hworth at 7:42 PM on September 21, 2016

First, when I looked into these rules where I lived, once you co-mingle the money from an inheritance, it is not longer treated as separate property. If you use the money for the downpayment, and his name is on the title, the default may well be that it is community property.

except inheritances, and gains from inheritance-related investments.
If you expect a share of the gain from your home, you are opening yourself up to a very complicated calculation based on many things you can't predict right now. Think careful about what you want to have happen here - personally I think it is simpler and fairer to just say that you get your downpayment back and all of the gains are community property but then you are getting married to me - what matters is what you and your partner think.

Also how does the size of your student loan debt compare to the inheritance? Will you paying that off with your inherited money or will you be using community money (eg what you are earning after your marriage) Would it be simpler to just assume that everything you own and owe is all community property?
posted by metahawk at 8:14 PM on September 21, 2016

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