Considering a prenuptial agreement before you get married? You’re not alone. According to a 2023 poll by Axios, a full 50% of American adults said they’d be open to signing a prenup agreement. Overwhelmingly, the demographic most on board with the idea of a premarital agreement was millennials.
That said, popularity isn’t everything. Deciding whether a prenuptial agreement is right for you and your spouse-to-be is an intensely personal process. A key part of that decision is understanding what a prenup can and cannot legally protect.
What Is a Prenup?
A prenuptial agreement, or prenup, is a legally binding contract between two people engaged to be married that outlines what happens to each person’s assets and debts in the event of a divorce.
Currently, prenups in many states follow the 1983 Uniform Premarital Agreement Act, which helps standardize how prenuptial agreements are handled. However, laws still vary by state, which is why working with an attorney to create a prenup agreement before marriage is important.
What Prenuptial Agreements Can Protect
Prenuptial agreements give couples broad authority to define financial expectations and protect assets. A well-drafted prenuptial agreement can cover the following:
Property Rights and Obligations
If one spouse enters the marriage with separate property, a prenuptial agreement can clarify ownership and responsibility.
- Define separate vs marital property
- Protect pre-marital assets
- Limit responsibility for maintenance costs
Division of Property and Debt
A prenup agreement allows couples to decide in advance how assets and debts will be divided.
- Real estate such as homes or vacation properties
- Vehicles, investments, and financial accounts
- Debt allocation, including student loans or credit cards
This is one of the most important benefits of a prenuptial agreement before marriage.
Dependents’ Interests
For individuals with children from a prior relationship, a prenuptial agreement can help protect their financial future.
- Set aside assets for children
- Prevent certain property from becoming marital property
- Align financial planning with family goals
Spousal Support (Alimony)
Prenuptial agreements often address spousal support.
- Waive alimony entirely
- Set a minimum or maximum amount
- Define conditions under which support applies
This provides predictability for both spouses.
Life Insurance Policies
A prenuptial agreement can include provisions related to life insurance.
- Require one spouse to maintain a policy
- Designate beneficiaries
- Allocate portions of a payout
Will and Trust Considerations
Prenuptial agreements often intersect with estate planning.
- Require creation of a will
- Define how property is distributed after death
- Waive elective share rights
Courts often give significant weight to a prenuptial agreement when conflicts arise.
Inheritances
If you expect to receive an inheritance, a prenup agreement can protect those assets.
- Keep inheritance separate from marital property
- Prevent future disputes over inherited wealth
Choice of State Law
Because prenuptial agreement laws vary, many prenups specify which state law will govern the agreement.
What Prenuptial Agreements Cannot Protect
While prenuptial agreements are powerful legal tools, they do have limitations.
Day-to-Day Household Matters
Prenups are limited to financial issues and cannot control personal behavior.
- Household chores
- Parenting styles
- Personal habits or beliefs
Including these can make a prenuptial agreement unenforceable.
Illegal Provisions
A prenuptial agreement cannot include anything illegal or require illegal actions.
Anything That Encourages Divorce
Courts will not enforce provisions that incentivize divorce.
- Financial rewards for filing for divorce
- Clauses that undermine marriage
These can invalidate the entire prenup agreement.
Unfair or Unjust Terms
A prenuptial agreement must be reasonably fair.
- Extremely one-sided property division
- Terms that heavily favor one spouse
Courts may refuse to enforce a prenup agreement that is considered unconscionable.
Reasons to Get a Prenup
Prenuptial agreements offer protection and clarity. Common reasons include:
- You have significant assets before marriage
- You have significant debt
- You have children or dependents
- You own a business
- You want to protect family heirlooms
- You want clear financial expectations
A prenuptial agreement helps couples take control instead of relying on state divorce laws.
Reasons Not to Get a Prenup
While useful, a prenuptial agreement may not be right for everyone.
- Concerns about trust or relationship dynamics
- Financial equality between partners
- Cost and complexity
- Cultural or religious beliefs
- Preference for other legal tools like trusts or postnuptial agreements
How Prenuptial Agreements Work
The Basic Process
Creating a prenuptial agreement typically involves:
- Discussing goals and expectations
- Collecting financial information
- Drafting the prenup agreement
- Reviewing and negotiating terms
- Signing and notarizing the agreement
- Enforcing the agreement if needed
Full financial disclosure and proper execution are critical to ensure the prenuptial agreement is enforceable.
Common Mistakes That Can Invalidate a Prenup
Even a well-intentioned prenup agreement can fail if certain mistakes are made:
- Including child custody or child support terms
- Failing to fully disclose finances
- Creating clearly unfair provisions
- Not allowing time for legal review
- Signing too close to the wedding date
- Lack of independent legal counsel
- Evidence of coercion or pressure
Avoiding these mistakes is essential for creating a valid prenuptial agreement.
What Happens When a Prenup and Will Conflict
When a prenuptial agreement conflicts with a will, courts often give priority to the prenup.
- Courts review the language carefully
- State law may determine the outcome
- Lack of clarity can lead to litigation
A well-drafted prenuptial agreement should clearly address how it interacts with estate planning documents.
How to Ensure Your Will Still Matters
If you have both a prenup and a will, there are ways to maintain control:
- Include a sunset clause in the prenuptial agreement
- Allow beneficiaries to challenge invalid agreements
Clear legal drafting is key.
How to Talk About a Prenup With Your Partner
Discussing a prenuptial agreement can feel uncomfortable, but timing and approach matter.
- Bring it up early in the engagement
- Focus on mutual protection
- Frame it as financial planning
- Avoid ultimatums
- Give your partner time to process
Approaching the conversation with respect can make a significant difference.
Frequently Asked Questions (FAQs)
What can a prenuptial agreement protect?
A prenuptial agreement can protect assets, debts, business ownership, inheritance, and define how property is divided in a divorce.
What cannot be included in a prenup?
A prenup cannot include child custody, child support, personal behavior rules, or illegal provisions.
Are prenuptial agreements enforceable in every state?
Yes, but laws vary. A properly drafted prenuptial agreement that meets legal requirements is generally enforceable.
Can a prenup override state divorce laws?
Yes. A valid prenup agreement typically overrides default state laws regarding property division and financial matters.
Should both partners have a lawyer for a prenup?
Yes. Independent legal counsel helps ensure the prenuptial agreement is fair, understood, and enforceable.
