It is now widely understood that drafting a prenuptial agreement can aid even the most devoted couples in strengthening their relationship before marriage. Although prenuptial agreements were once stigmatized, they are now embraced as a legal tool that helps couples work through important issues and set expectations in advance of marriage.
Just as the perception of prenuptial agreements has changed over time, so has the focus of these agreements. In the past, attorneys and couples were primarily concerned with safeguarding significant assets in case any given couple would one day opt to divorce. Now, the focus of prenuptial agreements is often prevention of future marital stressors including disputes related to property and hidden assets. Most recently, expectations related to digital assets have become a topic of discussion in many prenuptial agreement drafting sessions.
What are Digital Assets?
Digital assets can either be sentimental personal property (family emails), "items" of marketable value (like digital trading cards) or intellectual property that is stored digitally.
How to Address Digital Assets in a Prenuptial Agreement
There is no one "right" way to construct a prenuptial agreement. If there is any "hard and fast" rule to the drafting process, it is not to mislead or omit important information. Secondarily, prenuptial agreements generally must be "fair" to both parties. Circumstances and legal guidance tend to provide a road map for what is to be considered "fair."
When dealing with digital assets, it is generally a good idea to lay ground rules about whether a couple will maintain separate digital accounts or share them. It is also important to determine who will be able to access which assets and why. You also may want to discuss who can access either individual's assets or the couple's assets in the event of death or incapacitation. Finally, if any digital assets need to be appraised in order to deal with them fairly, it will be helpful for you to discuss this with your attorney as well.