What a prenup decides, and what your state decides without one

Questions people ask about this

• Will my prenup override my will?

  They do different jobs and it is a mistake to think of one as beating the other. A will says who receives what. An agreement records what each of you gave up or kept, and in several states it is the instrument that can waive a surviving spouse's statutory claim. New York permits that waiver expressly and asks for one formality: in writing, subscribed, and acknowledged the way a deed is acknowledged for recording. Colorado goes further and refuses to recognize a waiver of a marital right unless it sits inside an enforceable premarital or marital agreement. Neither of those makes the agreement a substitute for a will. Without a will, intestacy still decides who receives the rest.^{Source 7Source 9}

• Can my spouse still claim part of my estate?

  Usually yes, unless they have given that right up in a way your state recognizes. Most states give a surviving spouse a claim against the estate that the will alone cannot remove, and New York's version reaches past the probate estate to count joint accounts, payable-on-death designations and retirement money as testamentary substitutes. Florida adds a separate trap: marry after making a will, and the new spouse takes an intestate share unless the will provided for them, disclosed an intention not to, or an agreement dealt with it. The route out is not silence in the will. It is a waiver in the form the state requires.^{Source 6Source 7Source 10}

• What happens to my 401(k)?

  Once you are married, a typical employer plan treats your spouse as the default recipient of the death benefit, and naming anybody else requires that spouse's written consent, acknowledging the effect of the election and witnessed by a plan representative or a notary. Two things follow for a couple with an agreement. The consent the statute describes is given by the participant's spouse, and before the wedding neither of you is that. And a plan administrator is separately required to act in accordance with the plan's own documents, which means the form on file decides, not an agreement the plan has never seen. So sign the plan's own consent form after the marriage, whatever the agreement says. An ordinary IRA is not an employer plan under these rules, so the answer for an IRA can legitimately differ from the answer for the 401(k) it was rolled from.^{Source 12Source 11Source 13}

• I have children from an earlier marriage. Does a prenup protect what I leave them?

  Partly, and on its own not nearly enough. The agreement is where a new spouse can give up the statutory claim that would otherwise cut across what you leave your children, and in Colorado it is the only instrument that waiver can live in. It moves nothing by itself: the house still passes by its deed, accounts by their beneficiary forms, and a retirement plan by the plan's own paperwork. A second marriage is where those documents most often disagree with each other, and it is worked through in full on the page about coordinating an agreement with the rest of the estate plan.^{Source 9Source 11}

• Does a prenup affect life insurance beneficiaries?

  Not on its own. An agreement can commit one of you to carrying a policy and keeping it in force, which is a common way to secure a promise made to a spouse or to children from an earlier relationship. Who the insurer actually pays is decided by the beneficiary designation on file. Those are two separate acts, and a promise made in an agreement that was never followed by a change on the insurer's form leaves the money going where the old form says.

• What do we each have to write down and disclose before signing?

  Financial disclosure is the part of this that is work rather than negotiation, and it is worth doing properly because an agreement rests on it. What a state requires varies and Sahvelo has read no state's rules on it, but the practical list does not: every bank, investment and retirement account with its balance; real estate with what is owed on it; vehicles; business interests and your share of them; equity compensation and options; trusts either of you benefits from and inheritances either of you expects; life insurance; income; every debt including tax debt and anything co-signed; and any high-value personal property such as jewelry, art or collections that either of you is bringing. Make it a schedule specific enough to be evidence years later rather than a summary, because that is the job it has to do. Texas goes one step further and lets a subscribed and acknowledged schedule of separate property be recorded in the county deed records, and notes that such a schedule is not notice to a good-faith purchaser or creditor unless it is recorded in the county where the real property sits.^{Source 5}

• Can a prenup deal with alimony or spousal support?

  It is one of the things agreements are most often written to address, and it is also the term states are most likely to treat differently from property. Some attach extra conditions before they will enforce a waiver of support, and some will look at whether the result is still fair at the time it is claimed rather than only at the time it was signed. Sahvelo has read no state's rules on this and will not tell you whether a waiver would hold where you live. What is safe to say is that it is a real category, that it is worth deciding deliberately rather than inheriting, and that it is one of the specific things to establish with counsel in the state you will live in.

• What happens to income, royalties or anything I create after we marry?

  This is where the default rules do the most work and get noticed the least. In a community-property state, what either of you earns during the marriage is shared from the moment it is earned. Texas puts it plainly: separate property is what you owned before the marriage plus what came to you by gift, devise or descent, and everything else acquired during the marriage is community. Creative and intellectual property is two questions rather than one. Who owns the work, and who owns what it pays. A copyright, a catalog, a patent or a trademark created before the marriage can be your separate property while the royalties and licensing income it produces during the marriage are not. The same split applies to a business you already owned: Texas fixes an asset's character by inception of title rather than by who paid afterward, so a single asset can be part separate and part community, and growth in something you built is exactly the case that decides. An agreement is where a couple settles that in advance instead of reconstructing it years later.^{Source 1Source 2}

• Can we choose which state's law applies?

  Couples with connections to more than one state commonly name one in the agreement, and it is worth understanding what that does and does not settle. Naming a state does not make every question that state's question: a court applies its own rules about when it will honor that choice, and some questions, such as what happens to real property, are decided where the property sits regardless. Colorado shows the sharper version of the problem from the other direction: there, a waiver of a marital right is unenforceable unless it sits inside an agreement enforceable under Colorado's own article. Sahvelo has not read any state's rules on choice-of-law clauses and does not tell you whether yours would be honored. It is one of the first things to raise with counsel if either of you owns property in another state, if you may move, or if one of you is not a U.S. citizen.^{Source 9}

• Can we put anything we want in it?

  No, and the limit is not a formality. An agreement is a contract, and a state decides which of its terms it will enforce. Texas is explicit that an agreement only does the work of waiving statutory claims where it satisfies that state's own requirements for agreements, so the document is conditioned rather than self-executing. Three kinds of term are worth separating. Property and money between the two of you is the strongest ground. Terms a state regulates in its own right, such as support, choice of law and confidentiality, are real categories on conditions that state sets. And terms about somebody who did not sign, above all a child, are not yours to settle. Provisions about personal conduct, weight, chores or social media turn up in coverage of celebrity agreements and rarely in ordinary ones; their enforceability is uncertain, courts have limited appetite for supervising them, and they consume negotiating attention the financial terms need.^{Source 5}

• My fiance has a lot of student debt. Am I taking that on?

  Marrying somebody does not generally make you personally liable for what they already owe. Texas states it plainly: a person is personally liable for a spouse's acts only if the spouse acted as their agent or incurred a debt for necessaries, and marriage alone does not make either of you the other's agent. What can change is which property a creditor may reach. In Texas your separate property stays out of it, but community property that you manage is exposed to the debts you incurred, and all community property is exposed to either spouse's tort liability during the marriage. Note also the direction that surprises people: Texas will not recognize a reimbursement claim for a student loan owed by a spouse, so married earnings used to pay a partner's loans are not compensated by that section. An agreement can allocate responsibility between the two of you. It cannot bind a lender who was never a party to it.^{Source 3Source 4}

• Do I need to update my estate plan after signing a prenup?

  Yes, and the agreement is usually the beginning of that work rather than the end of it. Signing records what the two of you decided; it does not retitle a house, change a beneficiary form, or write a will. The list worth working through after the wedding is short and concrete: the will, any trust, the deed to any real property, every beneficiary designation on retirement and investment accounts, the life insurance, any business agreement, and the spousal consent on an employer retirement plan, which can only be given once you are actually married.

• We are already married. Is it too late?

  Not necessarily, and two of the four states read here say so on the face of their statutes. New York's waiver of the right of election is effective whether it was executed before or after the marriage. Florida's rule about marrying after making a will names prenuptial and postnuptial agreements together. Colorado's probate code speaks of premarital and marital agreements as one category. What Sahvelo cannot tell you is whether the standard your state applies to an agreement made during a marriage is the same one it applies before, because that is set by each state's own statute and courts and is not read here. It is the first question to ask.^{Source 7Source 10Source 9}

• We signed one years ago and then moved. Does it still work?

  It is worth a review rather than an assumption. The state you live in now may not be the state whose law the agreement was written for, and the two can differ on what the agreement may cover, what it takes to enforce it, and whether a waiver of a particular right is recognized at all. Colorado is the clearest illustration of why this is not a formality: there a waiver of a marital right is unenforceable unless it sits inside an agreement enforceable under that state's own article. A move is one of the events worth treating as a trigger to re-read the agreement alongside the will, the deed and the beneficiary forms.^{Source 9}

• Can we settle custody or child support in it?

  No, and this is one of the few places where the general answer is safe. Custody and parenting time are decided on the child's interests at the time the question arises, by a court, and a child is not a party to their parents' contract. States commonly provide that a child's right to support cannot be adversely affected by a premarital agreement. Couples can and do write down their intentions about children; what they cannot do is treat those intentions as settled in the way a property term is settled.

• My state is not one of the four. What do I do?

  Ask four questions locally, and they are the same four wherever you are. What does this state decide about property acquired during a marriage, and what is the standard for proving something was separate? What claim does a surviving spouse have against an estate here, and what does it take to give it up? What does this state require before it will enforce a premarital agreement, and does that include anything about timing or independent counsel? And does this state treat an agreement made after the wedding by the same standard as one made before? Sahvelo does not assert anything about the states it has not read, and where a state is not listed here, it has not been read.

Official links you'll need

Every link goes directly to the issuing agency or the official tool, and opens in a new tab.

• Read the uniform act on premarital and marital agreements (opens in a new tab)

  Uniform law Uniform Law Commission uniformlaws.org

• Read what federal law gives a spouse in an employer retirement plan (opens in a new tab)

  Federal agency U.S. Department of Labor dol.gov