Checklist Preparation of an Antinuptial Agreement
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FORM 16.01 Preparation of an antenuptial agreement check list QUESTIONNAIRE FOR INITIAL INTERVIEW 1. Personal data concerning client. a. b. c. d. e. f. Name. Residence address. Business address, if any. Age. Occupation, if any. Marital status. (1) Widow or widower. (2) Divorced. (a) Examine decree. Children by previous marriage, if any. (1) Name and age of each child. Other objects of client's bounty. (1) Grandchildren, if any. (2) Other relatives. Condition of client's health. g. h. i. 2. Personal data concerning client's intended spouse. (Obtain same information as that required about client.) Fact that client is engaged to be married. Date of contemplated marriage. Annual income of each party. a. b. c. d. e. f. Average earnings from business or occupation for past five years. Average rental income for past five years. Dividends and interest. Annuities and pensions. Income from trust funds. Other sources of income. 3. 4. 5. 6. List of all property owned by each party, and present market value of each item. a. b. c. Residential property. Other real estate. Business interests. d. e. f. g. h. i. j. k. 1. m. n. o. p. 7. Stocks, bonds, and investments. Bank and savings accounts. Accounts due from others. Household furnishings, furniture, and silverware. Professional or business equipment Farming equipment, livestock, crops. Automobiles. Aircraft and boats. Antiques; stamp or coin collections. Patents, copyrights, royalty interests. Insurance policies. Trust funds. Interests in estates. Recent transfers or gifts of property by either party. a. Nature and value. 8. Debts and obligations of each party LEGAL REQUISITES OF AGREEMENT 9. Compliance with Ohio statute of frauds.1 a. b. Contract must be in writing. Memorandum of oral agreement, if reduced to writing after marriage.2 10. Consideration to support contract. a. b. The intended marriage, and The agreements contained in the contract. 1 RC § 1335.05. A written agreement, executed after marriage by a husband and wife, which recites that it was made for the purpose of setting forth in writing an oral antenuptial agreement between the parties and also recites the terms thereof and affirmatively shows that it is a memorandum of such oral antenuptial agreement, constitutes a sufficient "memorandum or note" of such agreement to comply with the provisions of RC § 1335.05, known as the statute of frauds, and is not a contract between a husband and wife to "alter their legal relations" as prohibited by RC § 3103.06. In re Weber, 170 OS 567, 11 OO(2d) 415, 167 NE(2d) 98 (1960). 2 11. 12. Fairness and reasonableness.3 Full disclosure by prospective husband. a. Nature, extent, and value of his property. 13. Prospective wife's full knowledge. a. Nature, extent and value of intended husband's property. TAX CONSIDERATIONS (Before the antenuptial agreement is drafted the attorney should explain to and discuss with the client the tax consequences of the proposed provisions) 14. Imposition of federal gift tax on a. Transfer of money or property pursuant to an antenuptial agreement.4 15. Reduction of taxable amount by one-half (marital deduction). a. b. If transfer is made after marriage, and The gift does not consist of a terminable interest.5 DRAFTING THE ANTENUPTIAL CONTRACT 16. Prepare the agreement containing the following provisions (if applicable): a. Introductory recitals. (1) Date of agreement. (2) Names of parties. (3) Fact that marriage is contemplated. (4) Total value of property owned by prospective husband. (5) Fact ( if so) that prospective husband or wife has children by a previous marriage. (6) Desire to make provision for prospective wife in lieu of 3 Juhasz v. Juhasz, 134 OS 257, 12 00 57, 16 NE(2d) 328 (1938). 26 USC § 2512(b). 26 USC § 2523. 4 5 b. c. d. e. f. g. h. i. j. k. (a) Dower in his real estate; (b) Widow's year's allowance; (c) Distributive share in personal estate, and (d) All other rights as widow or heir. Consideration for agreement. Effective only upon solemnization of proposed marriage. (1) Not binding upon either party prior thereto. Promise (if any) to transfer property or pay to wife a sum of money. (1) Immediately after the marriage; or (2) Upon the death of the husband. (3) Same to become wife's property. No right or interest in property of other party. (1) Either during marriage, or (2) Upon the death of the other. Right of each party to sell, give, dispose of or devise: (1) His or her own property (a) Owned at time of agreement, or (b) Acquired thereafter. Release of marital rights by wife. (1) Dower, inheritance, and distributive share; (2) Allowance for twelve months' support; (3) Allowance for property exempt from administration; (4) Reside in the mansion house; (5) Right to administer estate of other party; (6) All other rights accruing by virtue of the marriage. Release of marital rights by husband. Agreement to execute instruments necessary to carry into effect the release and waiver of rights. Acknowledgment by prospective wife that (1) Net worth of intended husband has been fully disclosed to her. (2) She has given consideration to these facts. (3) She has had the advice of independent counsel. Agreement to be binding upon heirs, executors and administrators of the parties.