What is a prenuptial agreement in California?

What it is, in one paragraph

A premarital agreement is a written agreement between two people who are going to marry, signed before the wedding, about what belongs to whom and what happens to it. Most of it is about property: what each person brings, what happens to what they build, and what becomes of it if the marriage ends or one of them dies.

It is a contract, but an unusual one. It is made between two people who are not at arm’s length in the ordinary sense, it operates only if they marry, and the rules about how it has to be made are stricter than for almost anything else two people sign.

In California, premarital agreements are governed by the Uniform Premarital Agreement Act, at Family Code sections 1600 and following. Fam. Code, § 1600 et seq.

A premarital agreement must be in writing and signed by both parties. It does not require consideration. Fam. Code, § 1611

It does nothing until you marry

An agreement signed six months before a wedding that never happens is a piece of paper. It has no effect on anybody, and nothing in it can be enforced by either of them.

This surprises people who think of it as something that binds them from the day they sign. It does not. The wedding is the event that brings it to life, and until then either of them is free to call the whole thing off, including the marriage.

A premarital agreement takes effect when the parties marry. Fam. Code, § 1613

What it is not

Three ideas turn up often enough to be worth naming, because each of them stops a sensible conversation before it starts.

It is not a prediction that the marriage will fail. The people who most often have one are the people who have been through it once, who own a business with other people in it, or whose parents have asked. Making a will is not a plan to die.

It is not a way for one person to keep everything. An agreement that leaves one party with nothing, made by someone who was not told what they were giving up, is the shape of document that gets challenged, and this office will not draft one.

And it is not a private arrangement between the two of you that can stay informal. What you agree over dinner is not an agreement, and a promise kept for ten years is not one either.

A premarital agreement must be in writing and signed by both parties. It does not require consideration. Fam. Code, § 1611

What it can cover

The subjects available are broader than most people expect and narrower than some hope.

The core is property in every sense: what each of you has rights in, whenever and wherever it was acquired; the right to buy, sell, manage, mortgage or dispose of it; and what happens to it on separation, dissolution or death. It can also deal with making a will or a trust to carry out what has been agreed, with the ownership of a life insurance death benefit, and with which state’s law governs the agreement.

There is a catch-all after those, for anything else the parties want to settle, with a limit on what that catch-all reaches.

A premarital agreement may cover each party’s rights in property, how property is bought, sold or managed, what happens to property on separation, dissolution or death, the making of a will or trust, the ownership of a life insurance death benefit, and which state’s law applies. Fam. Code, § 1612, subd. (a)

Beyond the specific subjects the statute lists, a premarital agreement may cover any other matter that does not violate public policy or a statute imposing a criminal penalty. Fam. Code, § 1612, subd. (a)(7)

What it cannot do

The clearest limit is children. Arrangements for a child are not settled by what two parents agree about money between themselves, and a clause that reads as though they were is promising something it cannot deliver.

Spousal support has conditions of its own, quite separate from the rest of the document, and they are strict enough to have their own page.

And the catch-all has an edge. Some subjects are simply not available to be agreed, and a clause about one of them does not become effective because both people signed it.

A premarital agreement cannot adversely affect a child’s right to support. Fam. Code, § 1612, subd. (b)

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

Who each lawyer acts for

One lawyer cannot act for both of you. That is not a way of selling two engagements: the two of you are agreeing about money with each other, and a single lawyer cannot advise both sides of that.

So the ordinary shape is that one of you instructs a lawyer, that lawyer prepares the agreement, and the other is advised in writing to get their own. What the second person does next is genuinely up to them.

Where they do retain someone, that lawyer is paid by them and acts for them alone. Where they do not, there is a specific path with protections attached, and it is not simply signing without advice.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

A premarital agreement is not treated as signed voluntarily unless the party against whom it is later asserted was represented by their own independent lawyer when they signed, or was advised to seek one and expressly waived that right in a separate signed writing. Fam. Code, § 1615, subd. (c)(1)

What each of you has to tell the other

You cannot sensibly agree about property without knowing what property there is, and the agreement assumes each of you knew.

In practice this means a schedule for each person: what they own, what they owe, and enough detail that the other could actually act on it. "An interest in a company" tells a reader nothing. "A forty per cent interest in this company, which has these assets and these debts" tells them something.

Disclosure can be waived in writing, and people do waive it. It should be a decision taken deliberately rather than the default because gathering the numbers was tedious.

This office prepares a written disclosure of each party’s property and debts and serves it before the agreement is signed. It does that because disclosure is one of the things a court looks at if the agreement is ever challenged as unconscionable, and because an agreement is easier to keep to when neither party is surprised later by what the other owned.

Disclosure can also be satisfied where a party already had, or reasonably could have had, adequate knowledge of the other party’s property and debts. Fam. Code, § 1615, subd. (a)(2)(C)

The time it takes, and why

The single most common mistake is leaving it too late. Not because anybody is careless, but because the periods are counted in days and everything else has to happen before they start.

There is a period between the day a party is first given the final agreement and the day they can sign it, and a second one attached to the advice to go and get a lawyer. Where they start on different days, the later governs.

Before either can start, the agreement has to be drafted, and before that each of you has to have said what you own. A realistic run is measured in weeks. The page on the seven day rule has a calculator that works backwards from a wedding date.

On an agreement signed on or after 1 January 2020, at least seven calendar days must pass between the day a party is first given the final agreement and the day that party signs it, whether or not that party has a lawyer. Fam. Code, § 1615, subd. (c)(2)(B)

Where a party is advised to seek their own lawyer rather than retaining one, that advice must be given at least seven calendar days before the final agreement is signed. Fam. Code, § 1615, subd. (c)(1)

Property, and the thing most people get wrong about it

California is a community property state, and that is the background against which every one of these agreements is written. Without an agreement, what the two of you acquire during the marriage is generally treated as belonging to both of you, however it is titled and whoever earned it.

The idea that trips people up is that keeping things separate is a matter of keeping them apart. It is not. Money that starts as one person’s can lose that character through ordinary life: a separate account that receives a salary, a house bought before the wedding whose mortgage is paid from joint earnings, a business whose value grows because somebody works at it.

An agreement is the instrument for saying what all of that is in advance, rather than reconstructing it from a decade of bank statements afterwards. That reconstruction is what makes dissolutions expensive, and it is the expense an agreement is actually buying out.

It is also why the useful conversation is rarely about what each of you owns today. It is about what is going to happen to it.

A premarital agreement may cover each party’s rights in property, how property is bought, sold or managed, what happens to property on separation, dissolution or death, the making of a will or trust, the ownership of a life insurance death benefit, and which state’s law applies. Fam. Code, § 1612, subd. (a)

What makes an agreement vulnerable

It is worth knowing what the arguments look like, because they shape how a careful agreement is made.

The first is about whether a party signed voluntarily, which is a question with specific content rather than a general impression: whether they had their own lawyer or gave that up properly, whether the periods ran, what an unrepresented party was told, and whether the signing happened free of duress, fraud, undue influence and incapacity.

The second is about the bargain itself, together with what the party knew when they made it.

Almost everything this office does procedurally exists to answer the first of those with a record made at the time rather than a memory reconstructed years later.

A premarital agreement is not enforceable against a party who did not sign it voluntarily, and the statute sets out what a court must find before it treats a signature as voluntary. Fam. Code, § 1615, subds. (a)(1), (c)

A premarital agreement is not treated as signed voluntarily unless the court finds that the agreement, and the writings signed with it, were not made under duress, fraud or undue influence, and that neither party lacked the capacity to enter into it. Fam. Code, § 1615, subd. (c)(4)

An agreement that was unconscionable when it was signed is not enforceable where the party against whom it is asserted was not given disclosure, did not waive disclosure in writing, and did not otherwise have adequate knowledge. Fam. Code, § 1615, subd. (a)(2)

Whether a premarital agreement is unconscionable is decided by the court as a matter of law. Fam. Code, § 1615, subd. (b)

Changing it later

An agreement is not permanent. After the wedding it can be amended or revoked, and the requirement is the same formality that made it: in writing, signed by both of you.

What will not do it is an understanding, however clearly held. Couples who decided years ago that a clause no longer reflects them, and have behaved accordingly since, have not changed the agreement.

After the parties marry, a premarital agreement may be amended or revoked only by a written agreement signed by both of them. No consideration is required. Fam. Code, § 1614

If the wedding has already happened

People often arrive at this subject after the wedding rather than before, and the answer is not that they have missed their chance.

An agreement between two people who are already married is possible and common. It is a different document under different law, made by people who by then owe each other a good deal, and it has its own page.

An agreement made after the wedding is not a premarital agreement, and the Uniform Premarital Agreement Act does not govern it. Fam. Code, § 1600 et seq.; Fam. Code, § 1610, subd. (a)

What this office does, and what it costs

A flat fee, quoted before anything begins, with no hourly billing. The fee agreement says what the fee covers and when each part of it is earned.

The matter runs in a portal: each of you answers the questions, the schedules are prepared and served, the agreement is drafted and served with the written advice to the other party, the periods run, and the signing opens when they have. Every step is recorded as it happens, which is the part that matters if the agreement is ever looked at years later.

Nothing is charged until the fee agreement has been read and signed.

This office quotes a flat fee before any work begins, and the written fee agreement states what it covers, when each part is earned, and your right to a refund of anything not earned.

Where to go next

If the wedding is close, start with the seven day rule and the calculator on it.

If somebody has handed you an agreement to sign, there is a page written for you rather than for them.

If the concern is a business, or spousal support, each has a page of its own, because each has rules the rest of the document does not.