Can I Protect my RSUs and Options in a Postnup

By Sol Lee Jul 16, 2025

Can I Protect my RSUs and Options in a PostnupAre you considering a postnuptial agreement to protect your RSUs and options? With the increasing value of stock compensation, it's no wonder that individuals are looking for ways to shield their assets in the event of a divorce. In this article, we will explore whether a postnup can be an effective tool for safeguarding your RSUs and options. Understanding RSUs and OptionsBefore we delve into the intricacies of postnuptial agreements, let's first understand what RSUs and options are. RSUs, or Restricted Stock Units, are a form of stock-based compensation commonly used by companies to reward employees. When an employee receives RSUs, they are granted a specific number of shares that vest over a predetermined period. On the other hand, options grant employees the right to buy company stock at a predetermined price, known as the exercise price or strike price. Options typically have an expiration date, after which they become worthless if not exercised. What is a postnuptial agreement?While prenuptial agreements are commonly used to establish rights and obligations before marriage, postnuptial agreements offer a similar level of protection for couples who are already married. A postnup is a legal agreement that outlines the division of assets and responsibilities in the event of divorce or death. A postnuptial agreement can cover various aspects of a couple's financial affairs, including the treatment of RSUs and options. By clearly defining the ownership and distribution of these assets, a postnup can provide peace of mind and protect individuals from potential disputes in the future. Protecting RSUs and Options in a postnuptial agreementIncluding RSUs and options in a postnuptial agreement can be an effective way to safeguard these assets. However, it's important to understand the legal implications and limitations. In many jurisdictions, RSUs and options are considered marital property, which means they are subject to division in the event of a divorce. To protect your RSUs and options in a postnup, you can consider the following strategies: Identification and classification: Clearly identify and classify RSUs and options as separate property in the postnuptial agreement. This can help establish their non-marital status and protect them from being divided during a divorce. Distribution and valuation: Determine how RSUs and options will be distributed and valued in the event of a divorce. This can include specifying the timing of the distribution and whether any tax implications will be considered. Future vesting and exercise: Address how future vesting and exercise of RSUs and options will be treated in the postnuptial agreement. This can provide clarity on how any future stock-based compensation will be allocated between the spouses. By including these provisions in a postnuptial agreement, you can create a framework that protects your RSUs and options in the event of a divorce. Key considerations for including RSUs and Options in a postnupWhen including RSUs and options in a postnuptial agreement, there are several key considerations to keep in mind. These considerations can impact the enforceability and effectiveness of the agreement: Timing: The timing of the postnuptial agreement is crucial. It's recommended to create the agreement well in advance of any marital issues or divorce proceedings. This ensures that both parties have sufficient time to review and understand the terms of the agreement without any pressure. Disclosure: Full and accurate disclosure of all assets, including RSUs and options, is essential for the enforceability of the postnuptial agreement. Failing to disclose these assets can lead to the agreement being deemed invalid or unenforceable. Independent legal representation: Both spouses should have independent legal representation when drafting and signing a postnuptial agreement. This ensures that each party fully understands their rights and obligations, and helps prevent any claims of coercion or duress.

Key takeaways

RSUs and stock options are often considered marital property subject to division, not automatically separate property - a postnuptial agreement can help establish their non-marital status
Both spouses need independent legal representation when creating a postnup to ensure each party understands their rights and prevent claims of coercion
You should work with a family law attorney experienced in stock compensation to navigate the complex legal requirements and draft comprehensive language for your agreement
Postnuptial agreements can be amended or updated later to reflect changing circumstances, stock market fluctuations, or employment status changes
Combining a postnup with other strategies like diversification, estate planning, and financial planning creates a more comprehensive approach to safeguarding your stock compensation

Independent legal representation: Both spouses should have independent legal representation when drafting and signing a postnuptial agreement. This ensures that each party fully understands their rights and obligations, and helps prevent any claims of coercion or duress.

By keeping these considerations in mind, you can strengthen the validity and effectiveness of a postnuptial agreement that includes RSUs and options.

Working with a lawyer to draft a postnuptial agreement

Drafting a postnuptial agreement can be complex and requires the expertise of a family law attorney. When it comes to protecting your RSUs and options, it's important to work with a lawyer who has experience in this area.

A skilled attorney can help you navigate the legal requirements, draft a comprehensive agreement, and ensure that your interests are adequately represented. They can also provide guidance on the specific language and provisions necessary to protect your RSUs and options in a postnuptial agreement.

Potential challenges and limitations in protecting RSUs and Options

While a postnuptial agreement can be an effective tool for protecting RSUs and options, there are potential challenges and limitations to be aware of. These include:

State laws: The enforceability of a postnuptial agreement can vary depending on the state in which you reside. It's important to consult with an attorney who is familiar with the laws in your jurisdiction to ensure that your postnup will hold up in court.
Changing circumstances: RSUs and options are subject to change in value over time. It's important to consider how fluctuations in the stock market or changes in employment status may impact the effectiveness of a postnuptial agreement.
Future amendments: It's possible that circumstances may change after the postnuptial agreement is signed. In such cases, it may be necessary to amend or update the agreement to reflect these changes.

Understanding these challenges and limitations can help you make informed decisions when including RSUs and options in a postnuptial agreement.

Other strategies to protect RSUs and Options

While a postnuptial agreement can be an effective tool for protecting your RSUs and options, it's not the only option available. There are other strategies you can consider to safeguard your stock compensation:

Diversification: Consider diversifying your investment portfolio to reduce reliance on RSUs and options. This can help protect your overall financial well-being in the event of a divorce.
Estate planning: Work with an estate planning attorney to create a comprehensive plan that includes provisions for your RSUs and options. This can ensure that your assets are protected and distributed according to your wishes.
Financial planning: Engage the services of a financial planner who can help you make sound financial decisions and provide guidance on how to best protect your RSUs and options.

By combining these strategies with a postnuptial agreement, you can create a comprehensive approach to safeguarding your stock compensation.

Case studies - Real-life examples of protecting RSUs and Options in a postnup

To illustrate the effectiveness of postnuptial agreements in protecting RSUs and options, let's explore a few real-life case studies:

Case study 1: John and Sarah, a married couple, decide to include their RSUs and options in a postnuptial agreement. They clearly identify these assets as separate property and specify how they will be distributed in the event of a divorce. When they later decide to separate, the postnuptial agreement provides a clear framework for dividing their stock compensation, minimizing disputes and ensuring a fair outcome.
Case study 2: Lisa receives a substantial amount of RSUs and options during her marriage. In her postnuptial agreement, she includes provisions that protect her future vesting and exercise rights. When she and her spouse decide to divorce, the postnup ensures that Lisa retains ownership of her stock compensation, providing her with financial security for the future.

These case studies highlight the potential benefits of including RSUs and options in a postnuptial agreement and demonstrate how they can effectively protect these assets in the event of a divorce.

Common misconceptions about protecting RSUs and Options in a postnup

There are several common misconceptions surrounding the protection of RSUs and options in a postnuptial agreement. Let's address some of these misconceptions:

Misconception 1: RSUs and options are automatically considered separate property. In many jurisdictions, they are considered marital property subject to division. Including them in a postnup can help establish their non-marital status.
Misconception 2: A postnuptial agreement is only for wealthy couples. Postnups can be beneficial for couples of all financial backgrounds, as they provide clarity and protection in the event of a divorce.
Misconception 3: Once a postnuptial agreement is signed, it cannot be changed. Postnups can be amended or updated to reflect changing circumstances or new financial considerations.

By dispelling these misconceptions, individuals can make informed decisions about protecting their RSUs and options through a postnuptial agreement.

Conclusion

In conclusion, a postnuptial agreement can be an effective tool for protecting your RSUs and options in the event of a divorce. By understanding the legal framework and limitations, as well as working with a knowledgeable attorney, you can create a comprehensive agreement that safeguards your stock compensation.

Remember to consider the key considerations for including RSUs and options in a postnup, and be aware of potential challenges and limitations. By combining a postnuptial agreement with other strategies such as diversification and estate planning, you can create a robust approach to protecting your stock compensation.

Don't let the increasing value of stock compensation leave you vulnerable in the event of a divorce. Take control of your financial future by exploring the possibilities of safeguarding your RSUs and options through a postnuptial agreement.

Frequently asked questions

Can I protect my RSUs and stock options in a postnup?

Yes, you can include RSUs and stock options in a postnuptial agreement to establish them as separate property rather than marital assets. The postnup should clearly identify these assets and specify how they will be handled, including provisions for future vesting and exercise rights. Working with an experienced family law attorney is essential to ensure proper protection.

Are RSUs automatically considered separate property in marriage?

No, RSUs and stock options are typically considered marital property subject to division in many jurisdictions. This is a common misconception - these assets generally aren't automatically separate property. A postnuptial agreement can help establish their non-marital status and provide clarity for both spouses.

What challenges should I expect when protecting stock compensation in a postnup?

Key challenges include varying state laws that affect enforceability, changing stock values over time, and potential future amendments needed as circumstances change. The effectiveness of your postnup may be impacted by market fluctuations or employment status changes. It's crucial to work with an attorney familiar with your state's laws.

Do both spouses need separate lawyers for a postnup with RSUs?

Yes, both spouses should have independent legal representation when creating a postnuptial agreement that includes RSUs and options. This ensures each party fully understands their rights and obligations, and helps prevent claims of coercion or duress that could invalidate the agreement.

Can I change a postnup after signing if my stock compensation changes?

Yes, postnuptial agreements can be amended or updated to reflect changing circumstances or new financial considerations. Since RSUs and options can change in value over time, you may need to modify your agreement to address fluctuations in stock value or changes in your employment situation.