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Digital Assets in Prenuptial Agreements

Digital Assets in Prenuptial Agreements

By: bgkmediation October 20, 2023 12:44 am

Digital Assets in Prenuptial Agreements

How Are Digital Assets like Cryptocurrencies, Online Businesses, or Social Media Followings handled in Prenuptial Agreements?

Getting divorced is stressful. And you know what else is stressful? Having a judge decide what happens to the digital assets you’ve worked so hard to collect. You might even wonder if the judge really knows what digital assets are! But there’s no need to worry too much. There’s a simple solution to avoid this headache: get a prenup! Whether you own many digital assets or are new to this, a Prenuptial Agreement can help ensure they are kept safe. 

In today’s digital age, it is essential to consider all types of assets, including digital ones, when entering into a prenuptial agreement. This article will explore digital assets, why they are important in prenuptial agreements, how they are addressed in estate planning, the challenges in handling them, and how individuals can protect their digital assets.

What are Digital Assets, and why are they Important in Prenuptial Agreements?

Understanding the concept of digital assets is crucial for anyone entering a prenuptial agreement. Digital assets refer to any content or intellectual property stored in digital form, such as cryptocurrencies, online businesses, social media accounts, Non-Fungible Tokens (NFTs), and more. These assets hold value and may need to be accounted for in divorce or separation.

Techopedia defines a digital asset as property entirely in an electronic format. The most common examples include pictures, videos, websites, and computer files. Digital assets come with property rights. A digital asset is a form of non-physical property.

Including digital assets in prenuptial agreements is important because the digital age has significantly changed the definition of assets. Traditionally, assets were limited to physical properties and financial accounts. However, in today’s world, digital assets can hold immense value. With proper consideration, these assets may be noticed or undervalued during divorce proceedings or estate planning.

Three Categories of Digital Assets

Digital assets include a broad spectrum of various forms. Some of these assets possess considerable commercial worth, while others hold value that is essentially sentimental. When contemplating incorporating digital assets in a prenuptial agreement, it’s crucial to catalog what possessions are significant to you. Generally, digital assets are categorized into three main types:

Electronic Property with Monetary Significance: Some digital assets embody noticeable financial value. Bitcoin is a prime example, being a currency that exists solely digitally. Other economically valuable digital assets consist of business properties and website domain names.

Passwords and Account Access: The passwords and the accessibility to your accounts represent vital digital assets. It might be prudent to safeguard essential online accounts—from investment portfolios to social media profiles—through a prenuptial agreement.

Miscellaneous Digital Files and Data: Certain digital assets carry immense sentimental worth, such as photographs, home recordings, family culinary recipes, genealogical research, and much more. A prenuptial agreement can fortify dominion over these sentimentally valued properties.

What are the Challenges in Handling Digital Assets in Prenuptial Agreements?

Handling digital assets in prenuptial agreements can present unique challenges. For example, NFTs and cryptocurrencies require special consideration due to their volatile nature and constantly changing value. It is important to establish clear provisions regarding these assets to ensure their proper management and division in the event of divorce or separation.

Another challenge is the potential for one spouse to hide digital assets during the divorce proceedings. Unlike traditional assets that can be easily traced, digital assets can be more difficult to discover. It is important to address this issue in the prenuptial agreement and establish guidelines for full disclosure.

Fiduciary access to digital accounts and properties is another challenge that needs to be considered. In incapacity or death, the surviving spouse may need access to digital accounts and assets for estate administration. Including provisions for fiduciary access can ensure a smooth transition of digital assets.

Why Should You Include Digital Assets in your Prenuptial Agreement?

Including digital assets in your prenuptial agreement is essential for several reasons.

Protecting your digital assets in case of divorce

In the unfortunate event of a divorce, including digital assets in your prenuptial agreement ensures their protection. The agreement can outline how these assets will be divided and protect your rights to specific digital properties or online accounts. Addressing the ownership and distribution of digital assets upfront can minimize potential conflicts and disputes.

Ensuring proper disclosure of digital assets

Proper disclosure is crucial when it comes to prenuptial agreements. Including digital assets in the agreement ensures that both parties are fully aware of the existence and value of these assets. Failing to disclose all digital assets may lead to future legal issues and challenges.

Valuing digital assets and including them in the agreement

Assigning a value to digital assets can be challenging due to their unique nature. However, it is important to reasonably estimate their worth and include them in the prenuptial agreement. This ensures they are properly accounted for and can be divided accordingly in divorce. Consult with an estate planning attorney who specializes in digital asset valuation for assistance in this matter.

How are Digital Assets Handled in Prenuptial Agreements?

 Certain steps can be followed to include digital assets in your prenuptial agreement effectively.

Consulting with an estate planning attorney

Seeking the advice of an estate planning attorney is crucial when including digital assets in your prenuptial agreement. They can guide you through the process, ensure all legal requirements are met, and provide expert assistance in addressing the unique challenges posed by digital assets.

Valuation and disclosure of digital assets

Valuation and disclosure of digital assets within a prenuptial agreement are crucial. To ensure adequate protection, both spouses must disclose all their digital assets and assign appropriate values to them. This process helps ensure transparency and fairness in the division of assets during a divorce or separation.

Specific clauses for digital assets in the agreement

It is important to have specific clauses in your prenuptial agreement that address digital assets. These clauses should outline the ownership, division, and rights associated with digital assets. Including such clauses provides clarity and legal protection for both parties involved.

Considering fiduciary access to digital assets

One important aspect to consider when including digital assets in your prenuptial agreement is fiduciary access. Granting your spouse or another designated individual permission or instructions to access and manage your digital assets in the event of your incapacity or death can ensure their continued management and protection.

What are the Implications of Not Including Digital Assets in Prenuptial Agreements?

What are the Implications of Not Including Digital Assets in Prenuptial Agreements?

Failing to include digital assets in prenuptial agreements can lead to potential disputes during divorce proceedings. Without clear provisions, the division of digital assets may become contentious, potentially prolonging the overall divorce process.

Moreover, not securing digital assets during a breakup can have significant consequences. Digital assets may be lost, stolen, or devalued without proper management. Including digital assets in prenuptial agreements allows individuals to protect their investments and ensure fair division.

The implications of not addressing digital assets in prenuptial agreements also extend to estate planning and inheritance. With proper planning, digital assets may be included in your estate plan, leading to potential complications for your beneficiaries at the time of your passing.

What are the Challenges of Including Digital Assets in a Prenuptial Agreement?

While including digital assets in a prenuptial agreement can be beneficial, it has challenges.

Issues with valuing certain types of digital assets

Some digital assets, such as cryptocurrencies and NFTs, can be difficult to value accurately due to their market volatility and unique nature. Seeking professional assistance from experts in digital asset valuation can help overcome this challenge.

Ensuring proper disclosure of all digital assets

Properly disclosing all digital assets is essential to avoid future legal complications. However, in some cases, individuals may overlook certain digital assets or intentionally hide them. This can complicate the process of dividing assets during divorce proceedings. Open and transparent communication is vital to address this challenge.

Addressing the potential for hiding digital assets

The digital age has made it easier for individuals to hide assets by utilizing complex digital systems and platforms. Adequate measures should be taken to prevent the hiding of digital assets and ensure that all assets are disclosed and included in the prenuptial agreement.

What steps should you take to Protect your Digital Assets?

Protecting your digital assets requires proactive measures.

Incorporate digital assets into your overall estate plan

Include your digital assets in your overall estate plan alongside traditional assets like real estate and bank accounts. An estate planning attorney can assist in creating a comprehensive plan that covers all your assets, ensuring their proper management and distribution.

Securely manage and store passwords and access information

Managing your passwords and access information is crucial for protecting your digital assets. Utilize a password manager tool to securely store and organize this information, reducing the risk of unauthorized access or loss of valuable accounts.

Consider the use of cryptocurrency in your assets.

If you hold cryptocurrencies within your digital assets, you must familiarize yourself with cryptocurrency management’s intricacies. Be aware of the associated risks and consider consulting a professional with expertise in cryptocurrency to ensure secure storage and management.

What Types of Digital Assets Should Be Included in a Prenuptial Agreement?

Popular digital assets like cryptocurrencies and NFTs

As mentioned earlier, cryptocurrencies and NFTs have gained significant popularity and value. Hence, it is prudent to include these assets explicitly in your prenuptial agreement to ensure they are accounted for and protected.

Social media accounts and online businesses

Since social media accounts and online businesses can hold substantial value, you must include provisions for them in your prenuptial agreement. These provisions can address issues such as ownership, access, and division of online assets in the event of a divorce.

Digital property and intellectual property rights

Intellectual property rights, whether copyrights, trademarks, or patents, should be included in your prenuptial agreement to protect your digital assets. Additionally, digital property, including personal creations like digital art or music, can also be accounted for in the agreement.

Common Approaches to Addressing Digital Assets in Prenuptial Agreements

Addressing digital assets in prenuptial agreements is vital in today’s digital age. Here are some common approaches that parties might take:

Defining Digital Assets: Clearly defining what constitutes digital assets, including cryptocurrencies, NFTs, digital tokens, online accounts, and intellectual digital properties.

Valuation MethodsEstablishing how digital assets will be valued, given their often-volatile nature. Agreeing on using professional appraisal services or platforms to ascertain the value.

Division and Distribution: Detailing how digital assets will be divided or distributed in the event of separation or divorce. Determining whether certain assets, like cryptocurrencies or NFTs, will be sold or distributed as is.

Protection and Access: Implementing mechanisms for safeguarding digital assets, like securing private keys and passwords. Establishing protocols for accessing and managing digital assets, like cryptocurrencies stored in digital wallets.

Tax Considerations: Setting provisions regarding the tax implications of transferring or selling digital assets and who will be responsible for them.

Jurisdiction and Legal ComplianceSpecifying the jurisdiction that will govern the agreement and ensuring compliance with local, state, and federal laws regarding digital assets.

Transparency and Full Disclosure: Ensuring that both parties fully disclose their digital assets, including their existence, nature, and value.

Frequency of Valuation: Determining how frequently digital assets will be revalued, considering their volatile nature. Deciding whether these valuations will have any impact on the overall financial arrangements. 

Utilizing Trusts: Consider the utilization of trusts for the management and protection of digital assets.

Handling of Shared Digital Assets: Setting rules and mechanisms for the management of digital assets acquired or created jointly during the marriage.

Contact a St. Petersburg Prenuptial Agreement Mediator Today!

At BKG MEDIATION, LLC, we have extensive experience drafting, reviewing, and negotiating family mediation, prenuptial, post-nuptial, and real estate mediation. If you have questions about protecting digital assets with a prenuptial agreement, we can help. For a fully confidential consultation, please Contact Us at 727-249-7200

People Also Ask

People Also Ask

What are digital assets?

Digital assets refer to any form of online or electronic property that holds value. This can include cryptocurrencies, digital files, online accounts, domain names, and more.

Do digital assets need to be included in a prenuptial agreement?

Yes, it is important to include digital assets in a prenuptial agreement. This ensures that both parties are aware of the existence and value of these assets and how they will be divided in the event of a divorce.

How can digital assets be protected in a prenuptial agreement?

To protect digital assets in a prenuptial agreement, it is crucial to provide a detailed description of these assets, their estimated value, and how they will be distributed in case of a divorce or separation.

What happens to digital assets in the event of a divorce?

Digital assets, like any other assets, will be subject to division during a divorce. If they were not included in a prenuptial agreement, the court will determine how they will be divided based on applicable laws and the case’s unique circumstances.

How should digital assets be disclosed in a prenuptial agreement?

Digital assets should be disclosed in a prenuptial agreement by providing a comprehensive list of these assets, including their descriptions, current values, and any relevant login credentials.

What is an NFT, and how does it impact prenuptial agreements?

An NFT, or non-fungible token, is a digital asset representing ownership or proof of authenticity of a unique item. To ensure proper valuation and division, NFTs should be addressed explicitly in prenuptial agreements.

Should I hide my digital assets in a prenuptial agreement?

It is not recommended to hide your digital assets in a prenuptial agreement. Full disclosure of assets is crucial to ensure fairness and transparency in the agreement.

Can a prenuptial agreement protect my digital assets from being taken by my spouse?

 A prenuptial agreement can protect digital assets by clearly outlining ownership, distribution, and other legal provisions. However, consulting with a professional estate planning attorney or lawyer is advisable to ensure your assets are adequately protected.

What should I do if I have overlooked including my digital assets in a prenuptial agreement?

If you have overlooked including your digital assets in a prenuptial agreement, seeking legal advice from a qualified attorney is vital. They can help you amend the agreement or explore other legal options to protect your assets.

How can I manage my digital assets during a divorce or separation?

 To manage your digital assets during a divorce or separation, consider reviewing and updating your prenuptial agreement, notifying relevant service providers about the change in circumstances, and seeking legal guidance to ensure proper division and protection of your assets.