Also known as:antenuptial contracts · antenuptial agreement · antenuptial agreements · prenuptial agreement · prenup · pre-nuptial contract
Written by attorneys · grounded in primary & secondary sources — see below
A written agreement executed by prospective spouses before marriage that specifies the classification and division of property, support obligations, and other financial rights upon divorce or death. The agreement may vary default marital-property rules when it satisfies requirements of voluntariness, disclosure, and independent counsel. Courts enforce its terms unless they violate public policy by unreasonably encouraging divorce or restraining marriage.
Sources & Authorities
How it applies
Common Examples
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Court Weighs Prenup in Apportionment
Anika Anand and Andrew Avery signed a written antenuptial contract two weeks before their wedding that designated all future business equity as separate property. After a State A court dissolved the marriage without jurisdiction over out-of-state assets, Anika petitioned in State B for division of the equity and inventory. The court treated the antenuptial contract as a factor in its equitable apportionment analysis and assigned the contested assets according to the agreement's classification.
Nonmarital Partners' Pooling Agreement
Alexandra Armstrong and Alice Atkins lived together for several years and signed a written agreement pooling earnings and property. After separation, Alexandra sought enforcement of the pooling terms. The court enforced the agreement because its consideration rested on services other than sexual relations and therefore did not violate public policy.
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Uniform Acts
Restatements
Hornbooks
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Dictionaries
Marvin v. Marvin557 P.2d 106 (Cal. 1976)
Surviving Spouse Challenges Waiver
Ava Adebayo signed an antenuptial contract the night before her wedding that waived all surviving-spouse rights in her fiancé's estate. After his death, Ava sought an elective share and argued the waiver lacked consideration. The court upheld the waiver because a signed written agreement altering elective-share rights is enforceable without separate consideration.
Sullivan v. Burkin390 Mass. 864, 867, 460 N.E.2d 572 (1984)
Preembryo Disposition Agreement
Ariana Azizi and her husband signed an antenuptial contract that addressed disposition of frozen preembryos in the event of divorce. After separation, Ariana sought to enforce the contract's destruction clause over her former husband's objection. The court refused enforcement because contemporaneous objection by one donor prevented the agreement from controlling the preembryos.
A.Z. v. B.Z.431 Mass. 150, 725 N.E.2d 1051 (2000)
Common questions
Frequently Asked
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What procedural safeguards must an antenuptial contract satisfy to be enforceable?+
The agreement must be voluntary, supported by full financial disclosure, and executed after each party has had a reasonable opportunity to consult independent counsel. Absence of conspicuous waiver language or materially incomplete disclosure can render the contract unenforceable.
Does an antenuptial contract require consideration to waive elective-share rights?+
No. A written agreement signed by the surviving spouse that waives elective share and related allowances is enforceable without consideration under the governing statute.
Can spouses later alter an antenuptial contract's classification of assets by their conduct?+
No. Subsequent deposit of proceeds into a joint account does not automatically revoke or nullify a written marital-property agreement. Formal written modification is required to change its terms.
When may a court refuse to enforce an antenuptial contract on public-policy grounds?+
A court may refuse enforcement when the agreement unreasonably encourages divorce, such as by promising an excessive sum payable only upon divorce, or when it alters an essential incident of marriage in a manner detrimental to the public interest.
557 P.2d 106 (Cal. 1976)Property
…the subjective contemplation of the parties is uncertain and unworkable; such a test, we stated, "might invalidate virtually all antenuptial agreements on the ground that the parties contemplated dissolution ... but it provides no principled basis for determining which antenuptial agreements offend public policy and which do not." (17…