Prenuptial and Postnuptial Agreements

A prenuptial agreement is not a bet against your marriage. It is the operating agreement for a partnership — and business partners who pool a fraction of what spouses pool would never form one without it. The agreement forces something valuable in its own right: a transparent, dated inventory of the assets and debts each party brings in. That inventory is the evidence that decides, years later, what was separate property and what was not. A postnuptial agreement does the same job after the wedding, often prompted by an inheritance, a business stake, or a financial near-miss that clarified the stakes.

A prenup has limits, and a sloppy one is worse than none — it manufactures the illusion of protection. It cannot waive child support or pre-decide custody; those rights belong to the child, not to the spouses. Spousal-support waivers draw the closest judicial scrutiny. Most states have adopted the Uniform Premarital Agreement Act of 1983 — twenty-six jurisdictions, most of them with amendments — or its 2012 successor, the Uniform Premarital and Marital Agreements Act. Both demand the same three things of an enforceable agreement: independent legal counsel for each party, full and accurate financial disclosure, and freedom from duress. The 2012 act goes further than its predecessor, which commentators had criticized as tilted toward enforcement: it adds an express requirement of “access to independent legal representation,” requires that the terms be presented far enough ahead for a reasonable person to reflect, and extends the same rules to marital (post-nuptial) agreements, which the 1983 act never covered. California turns the disclosure and timing requirements into arithmetic. Under Cal. Fam. Code §1615(c) the party against whom enforcement is sought must have been represented by independent counsel (or have waived counsel in a separate signed writing) and must have held the agreement in final form for at least seven calendar days before signing; under §1612(c) a spousal-support provision is unenforceable outright against a party who had no independent counsel when it was signed. So do not present the document the night before the wedding, when refusing to sign means canceling a catered event in front of 200 guests: in California that document is already void before anyone reaches the question of duress.

One thing a prenup cannot do, and nearly every one of them tries. A prenup cannot waive your future spouse’s survivor rights in your 401(k), pension, or any other ERISA-governed plan. Those rights are federal — ERISA §205, 29 U.S.C. §1055 — and they belong to a spouse, which a fiance is not: IRC §417(a)(2), “Requirement of joint and survivor annuity and preretirement survivor annuity” conditions any non-spouse beneficiary designation on the written, witnessed consent of “the participant’s spouse,” and Treas. Reg. §1.401(a)-20, “Spousal consent” Q&A-28 states flatly that an agreement entered into before marriage does not satisfy that requirement — not even if it is signed an hour before the ceremony. The remedy is mechanical: have your spouse sign the plan’s own consent form, notarized or witnessed by a plan representative, after the wedding, and re-execute it every time you change employers or plans. An IRA carries no federal consent requirement at all, which makes rolling an old 401(k) into an IRA before a remarriage a genuine planning move — though in a community-property state your spouse may still have a claim on the community share of the balance.