Also known as:ante-nuptial agreement · antenuptial agreement · antenuptial agreements
Written by attorneys · grounded in primary & secondary sources — see below
An agreement between prospective spouses that specifies the ownership, management, and division of their separate and marital property during the marriage and upon dissolution or death. Courts treat the agreement as one factor in equitable apportionment of assets without regard to marital misconduct.
Sources & Authorities
How it applies
Common Examples
4
Post-Dissolution Property Apportionment
Lucas and Harrison married in State X. Two years before the wedding Lucas received stock options that vested mostly during the marriage. Harrison stayed home to care for the children. A State X decree dissolved the marriage but declined to divide a lake cabin in State A. Harrison later petitioned in State A. The court considered the antenuptial agreement of the parties along with homemaker contributions and the duration of the marriage when deciding whether to assign the options and cabin as separate property or divide them in just proportions.
Nonmarital Cohabitation Contract
Albert and Anika lived together for several years without marrying. They signed a written agreement pooling earnings and property. After separation Albert claimed the agreement was unenforceable because it rested on sexual relations. The court enforced the severable portions supported by independent consideration and awarded Anika her share of the pooled assets.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Hornbooks
Study Supplements
Marvin v. Marvin557 P.2d 106 (Cal. 1976)
Waiver of Spousal Election Rights
Arthur and Alexis executed an antenuptial agreement before their marriage in which Alexis waived any claim to Arthur's estate. After Arthur's death Alexis sought to set aside the waiver. The court upheld the agreement because it was made with full disclosure and did not alter an essential incident of marriage in a manner contrary to public policy.
Sullivan v. Burkin390 Mass. 864, 867, 460 N.E.2d 572 (1984)
Frozen Preembryo Disposition Agreement
Ava and Alice underwent IVF during their marriage and signed a form directing that frozen preembryos be awarded to Ava in the event of divorce. After separation Alice revoked consent. The court refused to enforce the form against Alice's contemporaneous objection because it would compel parenthood against her will.
A.Z. v. B.Z.431 Mass. 150, 725 N.E.2d 1051 (2000)
Common questions
Frequently Asked
4
How does an antenuptial agreement affect property division under the Uniform Marriage and Divorce Act?+
The Act lists any antenuptial agreement of the parties as one of the factors a court must consider when equitably apportioning property in a dissolution proceeding. The agreement does not automatically control the division but receives weight along with duration of the marriage, homemaker contributions, and each spouse's needs and opportunities for future assets.
Supporting sources
When will a court refuse to enforce an antenuptial agreement on public policy grounds?+
A court will not enforce terms that unreasonably restrain marriage, tend to encourage divorce, or alter an essential incident of the marital relationship in a manner detrimental to the public interest. Large conditional payments triggered only by divorce may be unenforceable if they create an incentive to end the marriage.
Supporting sources
Does an antenuptial agreement remain enforceable after one spouse dies?+
Yes, provided the agreement was made with full disclosure and does not violate public policy. Courts routinely uphold waivers of spousal election rights contained in valid antenuptial agreements when the surviving spouse seeks to claim against the decedent's estate.
Supporting sources
Can an antenuptial agreement be modified after the marriage occurs?+
Under the Uniform Marriage and Divorce Act, terms set forth in a decree that incorporates a separation agreement may be expressly made non-modifiable if the agreement so provides. Absent such language, modification remains possible unless the court finds the original agreement controls.
Supporting sources
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…