A premarital agreement can be a tough topic to discuss and a tricky document to draft. The discussion part is primarily the concern of the client. Although the attorney can make suggestions about why premarital agreements might be a good idea in a given situation, it’s up to the clients to discuss this sensitive matter with each other. But the drafting falls squarely on the attorney.
The drafting difficulty is a result of the interdisciplinary nature of premarital agreements. At a minimum, the attorney needs to be familiar with estate planning, probate (including elective shares and other spousal rights), and matrimonial/family law. Other laws affecting marital property can also come into play.
Take, for example, retirement plans. If one spouse makes contributions to a retirement plan during marriage, should the premarital agreement require that he or she make equal contributions to the other spouse’s retirement plan? That may seem like a good idea – unless you know that the husband’s retirement plan is a 401k and the wife’s retirement plan is an IRA, and that the contribution limits for these two types of plans are the same. To make this judgment call, you would need at least some familiarity with the rules governing retirement plans.
In situations like this, where other areas of law or even non-legal rules could be involved, it is best to take a collaborative approach. In the above example, working with the client’s financial advisor could help you spot the retirement planning issues that you might otherwise miss. It’s best to hit the problem from as many different angles as possible. This shared expertise will help ensure that the premarital plan will work as intended.