Prenuptial Agreement Template

A prenuptial agreement (or “prenup”) is a contract couples enter into before marriage to define each spouse’s financial and property rights should the marriage end in death or divorce.

While wealthy individuals typically use the agreement, people in all financial situations can outline terms to benefit themselves and their relationship with their partners.

Table of Contents

• Prenuptial Agreements - By State
• What Is a Prenuptial Agreement?
• Who Needs a Prenup?
• What Does a Prenup Include?
• Requirements for the Validity of a Prenup
• What Can Void a Prenup?
• How to Write a Prenuptial Agreement‌
• Prenuptial Agreement Sample
• Frequently Asked Questions

Prenuptial Agreements – By State

What Is a Prenuptial Agreement?

A prenuptial agreement is a marriage agreement that outlines the financial and property rights of a couple if they ever separate due to divorce or death.

It protects each spouse’s assets and financial interests. Partners can write this agreement before they get married while still on good terms. This way, if arguments or disagreements arise later in their marriage, they’ve already clarified their financial rights and responsibilities and can reference them when separating.

A prenup can also be useful in the unfortunate instance of one spouse’s death. It clarifies estate distribution, protects the living spouse, safeguards personal/family assets, and avoids state default laws.

Who Needs a Prenup?

All couples entering marriage should consider a prenup, but here are some examples of people who can especially benefit from a prenup:

• Business Owners: If one partner is a business owner, they can write a prenup with their significant other to ensure business continuity in the event of a divorce. This agreement also protects other stakeholders’ interests.
• Older Adults Who Are Remarrying: Older adults may have more complex financial situations and dependents for whom they’re responsible. A prenup can help separate one spouse’s situation from the other’s, ensuring they provide financial protection for themselves and their dependents.
• Wealthy Individuals: Individuals with valuable family heirlooms, assets, investments, and wealth can use a prenup to delineate between personal and marital assets.
• Individuals with Debt: Individuals with debt can sign a prenup to ensure their spouse won’t become responsible for debt repayments in the event of a divorce.
• Individuals with Potential Inheritances or High Earning Potentials: If one spouse anticipates earning a lot of money in the future through inheritance or rapid career growth, a prenup determines if future earnings will remain separate or marital property.

What Does a Prenup Include?

Here are the elements to address in a prenup:

Party Identification and Asset/Debt Disclosure

Ensure to state both parties’ full names to clarify to whom the agreement pertains. Ensure each party discloses their assets and debts.

Separate/Non-Marital Property

In a divorce, the court will generally divide marital property between both parties but exclude assets the parties have declared as “separate property” or “non-marital property.” However, blending or mixing the separate property may cause it to lose its independence during the marriage.

A couple can use a prenuptial agreement to designate which partner gets what in case of a divorce, regardless of commingling.

Separate or non-marital property includes:

• Premarital property (property that one spouse individually acquired before marriage)
• Any inheritance or gift that one spouse receives from a third party during the marriage
• Compensation from most personal injury awards
• Property that one spouse acquired after separation

Marital Property

Anything either partner acquires during marriage is usually shared marital property that belongs equally to each partner. However, a couple can use a prenup agreement to exclude specific property from being considered marital or “community property.”

Marital property includes:

• Earnings by each spouse during the marriage
• Property that the spouses purchase using either of their earnings during marriage
• Separate property that has commingled with other marital property (e.g., an individual bank account in which both spouses deposit funds)

Business Ownership

If one spouse began a business before getting married, the other spouse might be entitled to 50% of any increased value in the business that occurred during the marriage.

However, with a prenup, business owners can designate the status of a business owned before marriage as separate property. In the event of a divorce, this agreement would ensure that the business owner possesses exclusive rights to the company.

Savings and Retirement Goals

Couples can use prenuptial agreements to make concrete future financial plans together and decide how to invest, save, and spend their money.

For example, each spouse can agree to contribute a certain amount of money into joint bank accounts or determine a regular spending allowance. Similarly, a prenuptial agreement can clarify whether the spouses will pay for joint household expenses, like a mortgage, from separate or joint bank accounts.

Alimony and Spousal Support

A prenuptial agreement can explicitly determine whether the more disadvantaged partner will receive financial support if the marriage ends. However, state laws vary on whether a spouse can waive the right to receive alimony or spousal support.

When determining alimony, a judge and spouse may consider the following:

• If there is no spousal support, will the spouse become destitute and unable to provide for themselves?
• Does the poorer spouse have limited business experience?
• Did the wealthier spouse fully disclose all their assets and wealth?
• Did the disadvantaged partner truly understand the rights they were giving up?

Example:
Michael is a high-earning executive, and his spouse, Laura, is a freelance writer with a fluctuating income. They decide to waive alimony in their prenuptial agreement, acknowledging that Laura’s income may not be stable but agreeing that each will be financially independent post-divorce. However, they include a clause that allows Laura to request spousal support if she cannot support herself due to unforeseen circumstances like illness or loss of income.

Children from a Previous Relationship

If one partner has children from another relationship, a prenup can ensure that separate premarital property is shared with these children. Even when a will exists, prenup agreements can clarify and reinforce expectations to avoid costly legal battles that ultimately eat away at the estate.

Note: You cannot use a prenuptial agreement for unborn children from a new marriage.

Debt Allocation

Clarify if the spouses will assume each other’s debt that they had before entering marriage. You can also define how you wish to divide debts that partners incur during the marriage.

Example:
Jessica had $50,000 in student loans before marrying Mark, who is debt-free. Their prenuptial agreement includes a clause that states Jessica’s pre-marital debt will remain her responsibility in the event of a divorce, protecting Mark from being liable for her educational expenses. If Jessica accrues additional debt during the marriage, they agree to split it equally.

Requirements for the Validity of a Prenup

Many states have adopted their own version of the Uniform Premarital Agreement Act (UPAA), which governs the creation and enforceability of prenups. Other states haven’t adopted this act, so they follow state-specific provisions.

Each state has specific requirements for prenups, so you can consult with an attorney when creating yours to ensure compliance. However, many have similar requirements for prenups’ validity, some of which include the following:

• Written agreement: A written agreement is enforceable in most cases, whereas an oral one is not.
• Voluntary execution: Both parties must discuss the terms and sign the agreement voluntarily without the pressure of coercion or duress.
• Full and fair disclosure: Both parties must provide a transparent financial disclosure of all debts and assets.
• Legal representation: Both parties should have the right to have independent legal representation so they can protect their interests.
• Time for consideration: Both parties must receive time to consider the agreement and understand its terms.
• Legal provisions: The prenup shouldn’t contain any illegal provisions. For example, prenups won’t be acceptable if they discuss child visitation rights.
• Fairness: The agreement shouldn’t heavily favor one partner over the other.
• Signatures and notarization: When both parties acknowledge the listed terms, they must provide their signatures. Depending on your state, a notary public may need to witness the signatures.
• Execution before marriage: The parties should execute the agreement before entering marriage.

What Can Void a Prenup?

Here are some conditions that can void a prenup:

• Lack of voluntariness: If one party agrees to the terms by force, the prenup will be invalid.
• Fraud or misrepresentation: One party misrepresenting themselves or failing to disclose all their assets or liabilities can invalidate the prenup.
• Improper execution: Failing to abide by legal requirements, such as not seeking notarization when state law demands it, can result in an invalid prenup.
• Unconscionability: A one-sided prenup that would leave the other party without the means to care for themselves could become invalid.
• Change in circumstances: In some instances, a significant change in circumstances since executing the prenup that makes the agreement impractical or unfair may cause a court to void it.

How to Write a Prenuptial Agreement‌

Step 1 – Include Information from Both Parties

Provide the information of both parties. The document will split this information between the first and second spouses.

Include their full name and address as part of the contact information in the agreement. In later sections, you must also have the spouses’ marital backgrounds, legal representation, and financial disclosures.

Both spouses need to disclose whether they have been married before and/or if they have children.

Step 2 – Decide on Property

Property Owned Before Marriage

You can designate all prior properties as separate, shared, or a mix of both. For anything acquired before marriage, you can:

• Keep it separate so that only one person owns it.
• Keep some as his or her separate property and designate some as shared marital property.
• Designate it as shared marital property, so both spouses are owners.

Property Acquired During Marriage

When you get married, discuss how you will share the property that either party acquires during the marriage:

• Keep all the property that each person acquires during the marriage separate so that no property will be marital property.
• Keep all property that each person acquires during the marriage separate, except for items specified as marital property.
• Classify property that either spouse acquires during marriage as marital property, meaning the two parties share it.

Example:
During their marriage, Tom and Lisa purchase a vacation home together. Their prenup specifies that this property will be classified as marital property and divided equally if they divorce. They further agree that if one spouse decides to keep the property, that spouse will compensate the other based on the current market value at the time of divorce.

Division of Marital Property

You can establish property division by percentages. For example, both parties may receive 50%, or one party may receive a higher percentage if they contributed more during the marriage.

Another option is to divide property according to state law. A judge will decide if the couple cannot agree on dividing the property.

Usually, a court will divide the property equitably or fairly based on various factors if the parties do not specify how to divide such property.

Step 3 – Decide on Business

Business Owned Before Marriage

If you own a business before marriage, you can choose whether to share any future increase in the value of a company during the marriage.

Here’s an example where one spouse chooses to share the increased value of a business they own before marriage with their spouse:

Steve already owns a business worth $100,000. He decides to get married to Betty and share the appreciation of the value of his business equally. Ten years later, the company is worth $1,000,000.

The appreciation in value is $900,000. According to the prenup, Betty gets $450,000 of this increase, and Steve receives $450,000.

As their marriage continues, they will continue to split the appreciation of value equally.

Business Acquired During Marriage

If you or your spouse starts or inherits a business during the marriage, you can choose whether to share any future increase in the company’s value during the marriage.

When it comes to dividing the rise in value, you have the following options:

• Granted to the first party
• Given to the second party
• Shared equally
• Divided by percentage

For example, suppose you and your spouse start a business worth $100,000 while married. You decide to share any appreciation of the company’s value equally in case of a divorce.

Four years later, the business is now worth $500,000. The appreciation in value is $400,000. Unfortunately, the marriage ended after those four years. According to the prenup, your spouse gets $200,000 of this increase, and you receive the other half.

Step 4 – Agree on Debts and Taxes

Debt Owed Before Marriage

Suppose you have any outstanding loans or financial obligations before getting married. You and your partner can decide whether these debts will remain only one person’s responsibility or whether both of you are responsible for repaying debts after marriage.

Here are some of the ways you can treat either party’s debts before marriage:

• As each party’s separate debt
• Each party’s debt, with some exceptions
• As both parties’ shared marital debt

Debt Acquired During Marriage

Suppose you accrue debts, loans, or financial obligations during your marriage. In that case, you and your partner can decide whether these debts will remain only one person’s responsibility or whether you will share the responsibility in a divorce or separation.

Division of Marital Debt

You can set the debt division by percentages (i.e., both parties receive 50% of the marriage’s debt obligations). The second option is to divide debt according to state law.

If the couple cannot decide how to divide the debt, the couple will need to go to court, and the judge will determine the division.

Taxes During Marriage

You can file “Married Filing Jointly” or “Married Filing Separately.” Filing jointly exposes you to 100% of any future joint liabilities if your spouse has unreported income or other tax debts. Often, you and your spouse may pay fewer taxes by filing jointly.

Step 5 – Decide on Housing Arrangements

Marital Home

Specify how you’ll divide the marital home if the marriage ends. If you decide to divide the marital home, then you have the following options:

• The first party’s separate property
• The second party’s separate property
• Both parties’ shared marital property

Division of Household Expenses

Specify how you and your spouse will share household expenses during the marriage. If you decide to divide household expenses, you have the following options:

• Paid entirely by the first party
• Paid entirely by the second party
• Paid equally by both parties
• Each party will pay specific expenses

Step 6 – Iron Out The Final Details

Waiver of Rights

Alimony, or spousal support or separate maintenance, is money one spouse pays to the other after a separation or divorce.

The payments help support a spouse after marriage, especially if one spouse becomes incapacitated or stops their career from caring for children or a family business.

Here are some factors that may cause the alimony amount to vary:

• Each person’s current circumstances
• How long the couple was married
• Income level of each spouse
• If either person has medical needs

If both parties agree, they can calculate the alimony amount one will provide to the other. A court will still have to ensure the amount is reasonable and fair.

Most states allow you to waive the right to alimony in a prenuptial agreement, while some states do not. To ensure that your decision is enforceable by a court, please double-check your state law or consult an attorney.

Disability & Death

You can include provisions relating to your spouse about what happens if one of you becomes disabled or dies. These can include:

• Providing support if the other party becomes disabled
• The right for one party to continue living in the marital home if the other spouse dies
• One party’s inheritance rights if the other party dies

Additional Clauses

Additional clauses may include items such as a sunset provision. A sunset provision allows a prenup to expire on a specific date or after a particular event. For example, a prenuptial agreement could expire after five years of marriage or after a child is born.

Lifestyle clauses and infidelity clauses are generally unenforceable. For example, requiring your partner to maintain a certain weight, limiting the number of in-law visits, or having penalties for infidelity are usually not enforceable in a court of law.

Prenuptial agreements do not cover child support, custody, or visitation rights for future unborn children. For example, you cannot agree that your future children will live with one spouse before marriage.

In a separation, the court will decide the child’s best interest. However, a prenuptial agreement can be useful for providing financial support for children from a previous marriage.

Example:
A prenuptial agreement between Emily and David includes a sunset provision that expires after 10 years of marriage. If they are married for a decade, the prenup no longer applies, and any assets accumulated afterward are treated as marital property under state laws.

Financial Disclosures

The law requires “full and fair disclosure” to enforce a prenup, so each person must fully disclose their financial affairs and include all relevant information. For example, you should share all financial information like bank statements, retirement accounts, credit card balances, and any outstanding debts or loans.

Each spouse should attach information regarding their net worth, assets, income, holdings, liabilities, and debts.

Dispute Resolution

In the event a dispute arises, you have the following options to deal with them:

• Court litigation
• Arbitration
• Mediation
• Mediation, then arbitration

Notary Acknowledgments

You should have a notary public notarize your prenuptial agreement. Ensure you include the state and county where the parties have notarized the document.

Governance

You should specify which state laws the agreement will follow. For example, if you get married in California, the default is that the laws of California will apply to the prenuptial agreement if there is a disagreement.

If you want a different set of state laws to apply, specify this preference in the agreement.

Prenuptial Agreement Sample

Download a free prenuptial agreement template in PDF or Word format below.

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Frequently Asked Questions