Tier One: Why the Modern Prenup Needs Life Insurance to Keep Its Promises
HBO's new eight-part drama War, which premiered October 1, follows the fictional divorce of London tech billionaire Morgan Henderson (Dominic West) and international film star Carla Duval (Sienna Miller). Billed as the biggest divorce case in British history, the fight turns on a single document...the prenuptial agreement both signed at the start of their ten-year marriage. A decade later, he is by far the wealthier spouse, and she wants the agreement set aside.
The Henderson-Duval split is fiction, but the legal premise is very real. In England, a prenup is not automatically binding. Since the UK Supreme Court's 2010 decision in Radmacher v Granatino, courts will generally honor an agreement entered freely and with full understanding, unless holding the parties to it would be unfair given how their lives actually unfolded. That fairness question is the battlefield War's lawyers fight on.
In the United States, enforcement is a matter of state law, and most states uphold agreements that were voluntary, fully disclosed, and not unconscionable. But "most" and "generally" are not words that families with significant wealth should be comfortable relying on.
The Prenup Goes Mainstream
A majority of younger couples now have a prenup. In a Harris Poll of 2,148 adults conducted for Bloomberg News and published in July, 53% of engaged or married Americans under 45 said they had signed one. A similar Harris survey in 2022 put the figures at 41% for Gen Z and 34% for millennials. The same poll found that women request almost half of prenups.
The drivers are familiar to anyone who works with affluent families. Couples are marrying later, with the average first marriage in 2025 at 28.4 for women and 30.8 for men. They arrive with business interests, equity compensation, inheritances, real estate, and sometimes children from a prior relationship. Many are also beneficiaries of trusts that sit squarely in the path of the coming generational wealth transfer.
The modern agreement reflects that complexity. It classifies separate and marital property, carves out trust interests and family businesses, defines spousal support, and often waives or limits a surviving spouse's elective share. What it frequently leaves out is a funding mechanism.
Where Even a Well-Drafted Prenup Falls Short
Most prenup conversations focus on divorce. Yet many marriages end not in a courtroom but at a funeral, and that is where three gaps tend to surface.
Promises without money behind them. A prenup may promise a lump sum, ongoing support, or a share of a liquidity event. If the paying spouse dies, that promise becomes a claim against an estate that may be illiquid, tied up in a closely held business, or contested by children from a first marriage.
Waivers that invite a fight. When the less-wealthy spouse waives elective share rights, they give up a statutory safety net. An agreement that leaves a surviving spouse with little is precisely the kind that gets challenged on fairness grounds, the same argument War dramatizes.
Lives that outgrow the document. An agreement drafted for a couple at 32 may not fit them at 45, after children, a business sale, or a dramatic shift in who earns what. Changed circumstances are exactly what courts on both sides of the Atlantic look at when deciding whether to enforce.
Life Insurance as the Glue That Holds the Agreement Together
Life insurance turns a prenup's promises into guaranteed dollars, and it does so in ways few other assets can.
Funding the death obligations. The agreement can require the wealthier spouse to maintain a specified death benefit for the other spouse, the children, or both. Ownership by an irrevocable life insurance trust keeps proceeds outside the taxable estate and prevents the insured from quietly changing beneficiaries or surrendering the policy.
Making waivers fair. A guaranteed, trust-owned benefit can be the consideration that makes an elective share waiver defensible. Coverage can also step up with the length of the marriage, mirroring the sliding-scale support provisions common in modern agreements.
Protecting the business. A properly funded buy-sell agreement keeps a surviving spouse, or a former one, from becoming an unwanted partner. Heirs receive cash rather than a minority stake they never wanted.
Cleaning up after a divorce. Beneficiary designations do not update themselves. Many states revoke an ex-spouse's designation automatically, a practice the U.S. Supreme Court upheld in Sveen v. Melin (2018). Employer group coverage governed by ERISA, however, can override those statutes, as Egelhoff v. Egelhoff (2001) made clear. Spousal lifetime access trusts raise a similar issue if the trust document does not define "spouse" carefully. The prenup should state who owns each policy, who pays premiums, and whether coverage must continue after a divorce to secure support or child obligations.
Coordinating the Plan Before the Wedding
The strongest agreements are built by a team, not a single attorney. Before signing, couples and their advisors should work through five questions:
Does every financial promise in the prenup have a funding source if the paying spouse dies?
Is insurance owned by a trust, with premium responsibility and lapse remedies spelled out?
Do coverage amounts adjust as the marriage lengthens or the wealth gap widens?
Are buy-sell agreements, trusts, and beneficiary designations consistent with the prenup?
Is there a scheduled review, such as at five and ten years, or after a birth or liquidity event?
At Life Insurance Strategies Group, we do not sell products. We help our individual and institutional clients make decisions involving complex life insurance transactions. If we can be of help to you, reach out to us at www.lifeinsurancestrategiesgroup.com.
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