Prenuptial agreement
A marital agreement is a written contract regulating the disposition of spouses’ assets in the event of separation, divorce, or death. In addition, a marital agreement/prenuptial agreement constitutes the required instrument of perfection (sikringsakt) where significant assets are to be transferred tax-free between spouses.
As a general rule, each spouse retains separate liability and separate control over his or her assets and liabilities during marriage. There is a duty of mutual support, but otherwise, spouses largely maintain separate financial spheres, even where no separate property (særeje) has been established.
The difficulty arises when the marriage comes to an end.
If the marriage is dissolved by divorce, the marital agreement – particularly any provisions on separate property – becomes central. This is especially relevant where spouses have differing levels of wealth or where one or both have children from previous relationships. In such cases, there are often strong reasons to execute and register (tinglyse) a prenuptial agreement.
If the marriage is terminated by the death of one spouse, the marital agreement and any will govern the rights and inheritance of the surviving spouse. Where there are no children, or only joint children, the surviving spouse may often retain the estate undivided (uskiftet bo). However, where there are stepchildren, or where the deceased held significant assets acquired by inheritance subject to a separate property clause, a marital agreement combined with a will may suddenly become a crucial document for both the surviving spouse and the heirs. Moreover, one spouse may hold full separate property in part or in whole, which he or she wishes to dispose of in a specific manner – something that must necessarily be considered in conjunction with testamentary provisions.
Spouses with specific wishes regarding the handling of their estate upon one spouse’s death can benefit from establishing both a notarized will and a registered marital agreement. PrivatRevision frequently provides assistance with such strategies.
A marital agreement may be a comprehensive document allocating various assets upon death, divorce, etc., and addressing issues relating to stepchildren and similar matters. However, a marital agreement may also be a simple instrument – for example, merely providing that the red Porsche shall be the wife’s full separate property in the event of divorce, but not upon her death.
Finally, a registered marital agreement is the necessary legal mechanism where, for example, real property or a substantial cash amount is to be transferred as a gift from one spouse to the other.
Please feel free to contact us to discuss your needs and wishes, and how we may assist you.