Appendix D Basic Title Controls Agreement

• Library: Premarital Agreements: Drafting and Negotiation (ABA) (2017 Ed.)

Appendix D

Basic Title Controls Agreement

The model below is a plain title controls agreement under which parties waive all claims at death or dissolution and without the optional provisions included in the model in Chapter 12.

Premarital [postmarital] agreement

This Agreement is made this day___of__________, 20___, by and between SPOUSE ONE, [prospective husband/wife] (hereafter referred to as "___"), and SPOUSE TWO, [prospective husband/wife] (hereafter referred to as "___").

Recitals

1. The parties plan to marry after execution of this Agreement. [Alternative: The parties plan to marry on___[DATE] and after execution of this Agreement.] [If parties are already married: The parties were married on___[DATE] and are now husband and wife/spouses. The parties have___children together:___.]

2. Each party currently owns separate property, all of which has been acquired independently of and without the assistance of the other.

3. SPOUSE ONE is employed with__________ as __________. [Optional: He/ She is in good health to the best of his/her knowledge.] SPOUSE TWO is employed with__________ as__________. [Optional: He/She is in good health to the best of his/ her knowledge.] The parties are residents of__________[Or: SPOUSE ONE is currently a resident of__________and SPOUSE TWO is a resident of__________.]

4. SPOUSE ONE has [never] been married [previously] and has ___/ [no] children. SPOUSE TWO has [never] been married [previously] and has___/ [no] children. [Add, if appropriate:___has financial obligations for ___his/her child/ren and for a previous spouse.]

5. Each party read this Agreement in its entirety before signing it.

[6. If a postmarital agreement, state reason for agreement, e.g.: The parties intended to enter into a premarital agreement, but did not have enough time to conclude the negotiations and drafting prior to the date of marriage.]

7. The parties intend, by this Agreement, to establish their rights in all property currently owned or hereafter acquired by each of them upon the death of a party or in the event of a marital separation or divorce. The parties intend that each of them shall have the right to retain his/her separate property and to share marital property as set forth in this Agreement.

8. [Include following text if agreement provides for waiver of spousal support:] Each party further desires to waive any right or claim he or she has or may ever have to support from the other in the event of a marital separation or divorce [Add if agreement provides for contractual spousal support: , except as specifically provided herein]. [Optional: Each party is capable of providing for his or her own support through employment and through other means. Neither party intends to be dependent on the other for support in the future.]

9. The parties to this Agreement do not intend to facilitate or encourage a separation or divorce. Each party believes that the resolution of the issues covered by this Agreement in the manner set forth will promote their married life together, since the interests and values embodied in this Agreement are shared by and important to each party. The parties enter into this Agreement after thoughtful discussions between themselves, [Add, if appropriate: consultations with and advice from independent counsel,] and with love and respect for each other. Both parties intend for this Agreement to eliminate any issues between them or between one of them and the other's family upon the death of a spouse or in the event this marriage is unsuccessful.

10. The parties acknowledge that this Agreement is a premarital [postmarital] agreement as defined by law. Each party understands and intends that the provisions of this Agreement shall prevail over any statute or law of __________, or any other jurisdiction, including any foreign jurisdiction, which may be applicable in the absence of this Premarital [Postmarital] Agreement, and that this Agreement shall govern their rights and obligations upon death, separation, or divorce regardless of where they may be living at the time.

11. The parties acknowledge that a party may experience changed circumstances during the marriage [Alternative: after execution of this Agreement], such as a substantial increase or decrease in property values, or a decline in actual earnings, or earning potential, due to illness, disability, loss of employment, or market conditions, and that such changes may be unanticipated. The parties nevertheless agree that no change in circumstances shall affect the fairness and mutual consideration given at the time this Agreement is entered into nor shall it affect the validity of this Agreement or any provision thereof.

IN CONSIDERATION of the mutual promises and exchanges made by each party to this Agreement, the parties agree as follows:

Definitions

1. Property. "Property" means any interest, present or future, legal or equitable, vested or contingent, in any property, including real property; personal property, both tangible and intangible, whenever and wherever acquired or located. "Real property" means land, together with improvements and fixtures thereon. "Tangible personal property" means movable tangible assets, such as, but not limited to, furniture, furnishings, clothing, jewelry, art, automobiles, and equipment, and further includes animal companions. "Intangible personal property" means incorporeal assets, such as, but not limited to, cash, including virtual currency, such as bitcoin, certificates of deposit, negotiable instruments, such as checks, notes and mortgages, accounts receivable, insurance, annuities, interest in a trust (whether vested or contingent interest, or current or remainder interest), retirement benefits, an inherited IRA, ownership interest in a business or professional services practice, including, but not limited to, a limited liability company, partnership or "S" corporation, a copyright, patent, software license, or other form of intellectual property, and securities such as stock, bonds, units and options, and where any such property is held in a bank, brokerage, or other financial institution account, the account itself. "Untitled property" shall mean property that lacks a formal document, such as a deed, motor vehicle title, or stock certificate, evidencing ownership.

2. Retirement Benefits and Plans. "Retirement benefit" or "retirement plan" means any individual retirement account or annuity derived from a party's earnings, and any pension plan, profit-sharing plan, employee savings plan, 401(k) plan, or other deferred compensation benefit or plan, qualified or non-qualified, including stock purchase and stock option plans, provided through employment or self-employment, without regard to whether the terms of the benefit or plan may permit a party to receive benefits prior to actual cessation of employment.

3. Earnings. "Earnings" means monies and other compensation derived from a party's personal services, labor or employment, including, but not limited to, salary, wages, bonuses, origination fees, and commissions; in the case of an active business owner who reports business income on a Schedule C, business profits (defined as gross receipts in the ordinary course of business from the sale of goods or services less reasonable and necessary business expenses and a reasonable allowance for deferred costs, such as depreciation and amortization); in the case of an active business operated as an "S" corporation, partnership, or limited liability company, the business owner's nonpassive income reported on schedule K-1; net royalty income (defined as gross royalties less reasonable and necessary expenses, including amortization or depreciation, of producing the income) from intellectual property of which a party is the author, creator or inventor, or otherwise derived from a party's personal services, labor, or employment; employer and employee contributions to and income from a retirement benefit or plan; accrued but unpaid compensation; severance pay; workers' compensation; unemployment compensation; disability benefits; veteran's benefits; social security benefits; and all other cash compensation derived from personal efforts or employment. [Optional: "Earnings" also includes noncash employee benefits, such as, but not limited to, paid leave, health, life and disability insurance, company-provided vehicle or transportation allowance, expense accounts and allowances, the right to retain for personal use points or other awards from participation in an affiliation program, such as a credit card, hotel or airline awards program, and all other noncash remuneration derived from personal efforts or employment.]

4. Income. "Income" means monies derived from sources other than earnings defined in Paragraph 3 and includes, but is not limited to, dividends, interest, rents, royalties not defined as earnings (including royalties from oil, mineral, or other rights in real property), proceeds from the sale of property, and distributions (other than distributions of nonpassive income reported on Schedule K-1 as provided in Paragraph 3) from an estate, trust, pass-through entity, such as a limited liability company, partnership or "S" corporation, and other property in which a party has an interest.

5. Marital Property. "Marital property" of the parties shall be, and is limited to:

(i) funds or securities held in a joint financial institution (such as, a bank, credit union, or securities brokerage) account of the parties as tenants by the entirety, joint tenants with right of survivorship, or tenants in common, without regard to the source of funds, except as provided in Paragraph 7(H);
(ii) all other jointly titled property held by the parties as tenants by the entirety or joint tenants with right of survivorship without regard to the source of funds for acquisition, maintenance, or improvement of such property;
(iii) [Optional: the parties' primary marital home without regard to the source of funds for

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