Also known as:premarital agreement · premarital agreement's · prenuptial agreements · prenups · antenuptial agreements
Written by attorneys · grounded in primary & secondary sources — see below
An agreement between individuals who intend to marry that affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one spouse, or another event. The agreement must be in a signed record and is enforceable without consideration, though a court may refuse enforcement of a term that was unconscionable when signed or that would cause substantial hardship due to a material post-signing change in circumstances.
Sources & Authorities
How it applies
Common Examples
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Post-Signing Hardship Claim
Priya Prasad and Preston Pratt signed a premarital agreement that eliminated all spousal support. Five years after marriage, Preston suffered a disabling injury that left him unable to work and eligible for public assistance. When Priya sought divorce, Preston asked the court to refuse enforcement of the support-waiver term. The court evaluated the term in the context of the entire agreement and found that enforcement would produce substantial hardship from a material change in circumstances arising after signing, so it declined to enforce the waiver.
Premarital Property Division
Phoebe Park and Peter Park, intending to marry, signed a premarital agreement that they would share ownership of a home purchased with pooled earnings and titled only in Peter's name. After separation following the marriage, Phoebe sought to enforce the property-sharing term. The court enforced the term because the agreement was in a signed record and satisfied the statute's formation and disclosure rules.
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Uniform Acts
Restatements
Casebooks
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Study Supplements
Elective-Share Waiver Challenge
Pilar Pena and Patricia Patel executed a premarital agreement before marriage in which Pilar waived all rights to Patricia's estate, including the elective share. After Patricia's death, Pilar petitioned for an elective share and argued the waiver was invalid. The court examined whether the agreement satisfied statutory formation and disclosure rules governing spousal waivers of inheritance rights and determined that the waiver remained enforceable against the claim.
Sullivan v. Burkin390 Mass. 864, 867, 460 N.E.2d 572 (1984)
Common questions
Frequently Asked
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What formation requirements must a premarital agreement satisfy to be enforceable?+
The agreement must be in a signed record. Electronic records and typed statements of assent can satisfy the record and signature elements when they demonstrate mutual intent to be bound. The statute expressly provides that the agreement is enforceable without consideration.
Supporting sources
When may a court refuse to enforce a term in a premarital agreement?+
A court may refuse enforcement if the term was unconscionable when signed or if enforcement would cause substantial hardship because of a material change in circumstances after signing. The court decides unconscionability or hardship as a matter of law after considering the agreement as a whole.
Supporting sources
What additional protections apply when a party lacks independent legal representation?+
The agreement must contain either the conspicuous statutory notice of waiver or a plain-language explanation of the rights being modified or waived. Without these protections the agreement is unenforceable even if the party signed voluntarily.
Supporting sources
Does lack of consideration invalidate a premarital waiver of elective-share rights?+
No. A written premarital agreement signed by the surviving spouse is enforceable without consideration. The statute deliberately departs from ordinary contract doctrine on this point.
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…