Prenuptial agreement

What it means

A prenuptial agreement, also called a premarital or antenuptial agreement, is a contract between two people who are about to marry. It deals with property, income, debt and what each may claim from the other, including at death.

It works by replacing default rules rather than by creating new ones. Marriage applies a state's rules about property, debt and a surviving spouse's claim on an estate whether or not anybody chooses them; an agreement is how a couple decides some of those for themselves.

What it may cover, and what a state requires before enforcing it, are set by that state's own statute and courts and differ substantially.

Why it matters

It is widely understood as a document for wealthy people preparing for divorce. Both halves of that are misleading: the default rules apply to every married couple, and they decide what happens at death as much as at separation.

It is also only one document in a system. It does not retitle a house, change a beneficiary form, write a will, or by itself redirect an employer retirement plan.

When you are likely to meet it

• Before a marriage, when one person owns a home or a business, or either is bringing significant debt.
• In a second marriage, where each person wants their own children to receive what they brought.
• After a death, when a surviving spouse's claim on the estate turns on whether it was waived.

How this varies by state

What a premarital agreement may cover, what a state requires before enforcing one, and whether anything is required about timing or independent legal advice are all state law and differ substantially. Sahvelo has read four states on what such an agreement can do about a spouse's rights at death, and has read no state's enforceability standard.

Related terms

• Beneficiary designationA named person on an account or policy who receives it directly on death, without it passing through the will or probate.
• ComminglingMixing separate property with shared property so thoroughly that it stops being possible to tell them apart.
• Community propertyIn some states, most of what a married couple acquires during the marriage belongs to both of them equally, whatever the paperwork says.
• Elective shareA surviving spouse's right to claim a minimum portion of the estate, even if the will leaves them less or nothing.
• Marital propertyProperty treated as belonging to the marriage rather than to either spouse alone.
• Postnuptial agreementThe same kind of agreement, made by a couple who are already married.
• Pretermitted spouseSomeone who married after their partner made a will, and who some states give a share of the estate anyway.
• Revocable living trustA trust you create during your lifetime, keep control of, and can change or cancel at any time. Property held in it does not go through probate.
• Separate propertyIn a community property state, what belongs to one spouse alone — usually what they brought into the marriage, and what they inherited or were given.
• Spousal supportMoney one spouse pays the other after a marriage ends. Some states call it alimony, some maintenance.
• Right of survivorshipA form of shared ownership where the survivor automatically takes the whole thing.
• WillA written document saying who should receive what, and who should be in charge of seeing that it happens.

Sahvelo guidance that uses this

• Prenups, and what your state decides without one
• Do we need a prenup?