Definition
A prenuptial agreement, often called a "prenup," is a written contract that two people sign before marriage to decide in advance how their property, debts, and spousal support will be handled if the marriage ends in divorce or death. It lets couples set their own financial rules instead of relying on default state law. To be enforceable, a prenup generally must be voluntary, in writing, and based on fair financial disclosure, though the exact requirements vary by state.
Legal Meaning
A prenuptial agreement is a contract entered into "in contemplation of marriage." It becomes effective once the couple marries and typically governs what happens to their assets and obligations if they later divorce or if one spouse dies. A similar contract signed after the wedding is called a postnuptial agreement.
Prenups are governed by state law, but a majority of states have adopted some version of the Uniform Premarital Agreement Act (UPAA) (or the related Uniform Premarital and Marital Agreements Act), which sets common standards for validity and enforcement. Under the UPAA, a court generally will not enforce a prenup if a party did not sign it voluntarily or if it was unconscionable when signed and that party did not receive fair and reasonable financial disclosure and did not waive it.
A well-drafted prenup can protect a family business, an inheritance, premarital assets, or one spouse from the other's debts, and it can waive or limit alimony in many states. However, it cannot dictate child custody or child support in advance. To understand how a prenup fits into the broader picture, see our family law practice area.
Key Points
- A prenup is signed before marriage; a similar post-wedding contract is a postnuptial agreement
- It sets out how property, debts, and spousal support are handled if the marriage ends
- Most states follow some version of the Uniform Premarital Agreement Act (UPAA)
- To be valid, a prenup generally must be written, voluntary, and based on fair financial disclosure
- A prenup cannot pre-decide child custody or child support
- Unconscionable, coerced, or fraudulent agreements can be thrown out
- Each spouse should ideally have independent legal counsel
- Requirements and what can be waived vary significantly by state
Real-World Example
Before getting married, Daniel owns a successful family business and an inheritance from his grandmother, while his fiancée Aisha has substantial student loan debt. They want clarity about their finances. Several months before the wedding, each hires a separate attorney, exchanges complete financial disclosures, and signs a prenuptial agreement.
The prenup states that Daniel's business and inheritance remain his separate property and that Aisha's student loans remain her separate debt, so neither becomes the other's responsibility in a divorce. It also includes a limited alimony provision. Because the agreement was signed voluntarily, well before the wedding, with full disclosure and independent counsel, it is far more likely to be enforced if the marriage ever ends.
What a Prenup Can and Cannot Do
| Generally Allowed | Generally Not Allowed |
|---|---|
| Classify property as separate or marital | Pre-decide child custody arrangements |
| Divide assets and debts if the marriage ends | Set or waive child support in advance |
| Waive or limit alimony (in many states) | Include illegal or unconscionable terms |
| Protect a business, inheritance, or premarital assets | Encourage or incentivize divorce |
| Define financial responsibilities during marriage | Enforce personal or lifestyle clauses (chores, looks) |
| Address estate and inheritance rights | Override a spouse's basic legal protections unfairly |
Requirements for a Valid Prenup
While the details differ by state, courts commonly look for the following to enforce a prenuptial agreement:
- In writing and signed: Oral prenups are not enforceable.
- Voluntary: Neither party was pressured, coerced, or signed under duress.
- Full financial disclosure: Each party honestly disclosed assets, debts, and income, or knowingly waived disclosure.
- Not unconscionable: The terms were not so one-sided as to be grossly unfair when signed.
- Adequate time: The agreement was presented well before the wedding, not sprung at the last minute.
- Independent counsel: Ideally, each spouse had their own attorney review the agreement.
Meeting these conditions does not guarantee enforcement, but failing to meet them is a common reason prenups are challenged and set aside.
Prenups and Estate Planning
A prenuptial agreement is not just a divorce planning tool; it can also coordinate with estate planning. Spouses often have inheritance and elective-share rights under state law, and a prenup can adjust or waive some of those rights. People with children from a prior relationship sometimes use a prenup alongside a living trust or other estate documents to make sure assets pass as intended. Because property classification affects what is in a person's estate, prenups frequently appear in estate plans.
Related Terms
Thinking About a Prenup?
Learn how prenuptial agreements work in your state and connect with a family law attorney who can draft an enforceable contract.
Explore Family LawWhen You Need a Lawyer
A prenuptial agreement is a binding contract that can affect your finances for decades, so legal guidance is important. Consider hiring a family law attorney if:
- You or your partner own a business, real estate, or significant assets
- Either of you has substantial debt or expects an inheritance
- One or both of you have children from a prior relationship
- You want to waive or limit alimony
- You are being asked to sign a prenup and want to understand its effect
- You want the agreement to hold up if challenged later
Having independent attorneys for each spouse is one of the best ways to make a prenup enforceable. For help with costs and choosing counsel, see understanding legal fees and how to choose a lawyer.
Frequently Asked Questions
What can a prenuptial agreement include?
A prenuptial agreement can address how property and debts will be divided if the marriage ends, classify what counts as separate versus marital property, waive or limit alimony, and protect a family business, inheritance, or assets brought into the marriage. It can also set out each spouse's financial rights and responsibilities during the marriage. What it can lawfully include varies somewhat by state.
What cannot be included in a prenuptial agreement?
A prenup generally cannot decide child custody or set child support in advance, because courts must determine those issues based on the child's best interests at the time. Provisions that are illegal, that encourage divorce, or that are unconscionable may be struck down. Personal or non-financial terms, such as chores or appearance clauses, are usually unenforceable even if written into the agreement.
What makes a prenuptial agreement enforceable?
Most states require that a prenuptial agreement be in writing and signed voluntarily, with fair and reasonable disclosure of each party's finances. Many states follow the Uniform Premarital Agreement Act (UPAA), under which a court may refuse to enforce an agreement if it was signed involuntarily or was unconscionable when signed without adequate financial disclosure. Signing well before the wedding and having independent attorneys strengthens enforceability.
Do I need a lawyer to create a prenuptial agreement?
You are not always legally required to use a lawyer, but it is strongly recommended that each spouse have independent counsel. Separate attorneys help ensure both parties understand the agreement, that financial disclosure is adequate, and that no one was pressured into signing. Independent representation makes a prenup far more likely to hold up if it is later challenged in court.
Can a prenuptial agreement be challenged or thrown out?
Yes. A court may refuse to enforce all or part of a prenup if it was signed under fraud, duress, or coercion, if a party did not voluntarily sign, if there was inadequate financial disclosure, or if the terms were unconscionable. Courts also disregard provisions that improperly try to control child custody or support. Because the standards vary by state, the agreement's validity depends on where it is enforced.
State-Specific Information
Prenuptial agreement requirements and what can be waived vary by state, especially regarding alimony and the UPAA. For more on how divorce works in your state, see our comprehensive guide: