Q. My husband and I signed a prenuptial agreement before getting married ten years ago.  Things are going fine but we just moved from Massachusetts to Maine.  As part of our move, we sold our home and bought a new one, but we kept our Cape house where we spend our summers.  We also did some estate planning now that our children from our first marriages are older which is different from our prenuptial agreement.  I don’t have any concerns about our marriage, but I also know we signed a prenuptial agreement to prevent any problems in the future after we both went through very contentious divorces with our first spouses.  The agreement has some complicated math provisions about our Massachusetts house.

Will our agreement still be enforced in Maine even though we don’t own the Massachusetts house any longer?  Also is there a problem that our estate plan is different from our prenuptial agreement?

A. If you are going to be living in Maine, chances are any future divorce would take place in Maine.  Most prenuptial agreements have a choice of law provision which says if you are enforcing the agreement in another state, that state will apply the law of the state where the agreement was drafted.  So, in this case, you would be asking Maine to enforce the agreement using Massachusetts law. This process is simple enough in theory.  One could argue that the sale of the Massachusetts house and purchase of the Maine house should have no bearing on the outcome and the complex math would just be applied to the Maine house.  However, if the math no longer works due to the difference in value of the two homes, you may need to revise the provision.

To further complicate things, if your estate plan is significantly different than your prenuptial agreement in terms of how you provide for each other, you need to be clear which document you want to have followed upon your death.  Revising the prenuptial agreement may be a little bit of a hassle but in the long run, doing so would offer the same protection you originally put in place when you signed it – the peace of mind of a roadmap in the event of a divorce.

Bottom line, you do not have to do anything, but for peace of mind, it is worth a consult with a Maine family law attorney.

Email questions to whickey@brickjones.com