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How Prenuptial Agreements Work

A prenuptial agreement is a financial contract between two people who are planning to get married. In a prenup, you are agreeing to terms and conditions specific to your marriage that override California's default marriage laws. You follow the rules of the contract whenever they apply, which would be either during marriage or upon divorce or death.


The Prenup Itself


A prenup must be completed and signed before marriage. (If it's after marriage, it's a postnup.) Whatever is in the prenup will apply for the length of your marriage unless you change it in writing later.


A prenup only covers financial issues between spouses. It doesn't cover behavior or issues related to children.


If there's an issue you didn't cover in your prenup, it will be covered in the California Family Code and California Probate Code. These are the default laws that apply to all marriages.


Once the prenup is signed, there's nothing you need to do afterward. You don't have to file it with any government entity. It's not accessible to the public. You just have to keep it someplace where you will be able to find it if you need it later -- maybe years or decades later.


A Prenup Agreement During Marriage


You might never look at your prenup agreement during marriage. If your relationship is going well, you likely won't think about it. But it would be wise to remember the terms that you both agreed to, as life circumstances can change.


Even with a contract like a prenup, you still may need evidence to back it up. This will likely include records of financial transactions that took place during your marriage. Generally, your word won't be enough in court.


If you don't keep records, it may be hard to prove your case later.


A Prenup Agreement at Divorce


A prenup agreement will usually say something specific about divorce, whether related to community property, spousal support, or other issues.


It might state there is no community property. It may say spousal support is limited to a certain dollar value or length of time or that one spouse gets to keep the family home.


The prenup serves as evidence that you've already agreed on specific issues in your divorce. If you lose the prenup itself, it's like it never existed, and the default marriage laws would apply. This might significantly change the outcome of how your finances are split.


A Prenup Agreement at Death


A prenup agreement may say something about providing for a spouse in a will or some other payment like life insurance. If there is a dispute between the surviving spouse and other relatives over an inheritance, the prenup would be important evidence.


Or the prenup might say the surviving spouse waives all of his or her inheritance rights. In this case, other heirs would want to use that as evidence that they are entitled to the inheritance. But they would have to know it existed.


If the surviving spouse is less than honest, they won't want to share the contents of the prenup agreement with anyone.


So even though it's a private document, you should ensure that someone else -- likely your children or other relatives who might inherit from you -- is aware that you have a prenup agreement.


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