What is a Prenuptial Agreement?

A prenuptial agreement, or prenup, is a private agreement between a couple contemplating marriage. The couple generally arranges, in advance, financial matters in the event of death or divorce. "Lifestyle" or non-financial topics also may be included. The prenuptial agreement overrides and preempts state family and probate law that otherwise would apply.

Sometimes called premarital or antenuptial agreements, prenups in the United States used to be playthings of the rich and famous. Today, however, they are becoming commonplace in the landscape of middle-class America. In the last 20 years the number of prenuptial agreements has quintupled, and by 2020, it is expected that the majority of couples will be preceded down the aisle by prenuptial agreements.

Postnuptial, midnuptial or internuptial agreements are contracts between spouses. They are similar to prenuptial agreements except they are signed during marriage. They are dissimilar to separation agreements, because they are not signed in contemplation of a separation or a divorce. They are entered into in contemplation of an ongoing, viable marriage.

Increasingly today, same-same or non-married couples are consummating cohabitation or living together agreements. A cohab typically tries to establish contractually for the parties the rights and obligations that by custom, statute and prenuptial agreements accrue to married people, especially with regard to the division of real property and other assets.

Prenuptial agreements are valid in all 50 states. In fact, since 1983, at least 26 states have enacted a version of the Uniform Premarital Agreement Act, which encourages enforcement of prenups. Case law is sufficiently developed that a well-drafted prenuptial agreement, properly prepared by counsel for both parties, can withstand the toughest scrutiny.

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