Your rights
What is a prenup, and what can a prenuptial agreement cover?
Key points
- In writing
- In California, Texas and Florida, a prenup must be in writing and signed by both people. New York also requires it to be acknowledged the way a deed is.
- Children
- In California, Texas and Florida, a prenup may not adversely affect a child's right to support.
- Enforceable
- In those three states, a prenup fails if the spouse challenging it proves they didn't sign voluntarily, or that it was unconscionable and they lacked fair disclosure of the other's finances.
- California
- For a prenup signed on or after January 1, 2020, the spouse needs at least 7 calendar days between first getting the final agreement and signing it, or it is treated as not signed voluntarily.
A prenup, or prenuptial agreement, is a written contract two people sign before they marry that sets out each spouse's property and financial rights if the marriage ends in divorce or death. The law calls it a premarital agreement: an agreement between prospective spouses, made in contemplation of marriage, that takes effect only when they marry. There is no single national rule: each state decides what a prenup can cover and when a court will enforce it.
Below: what a prenup can and can't cover, the Uniform Premarital Agreement Act, what makes one enforceable, postnuptial agreements, a side-by-side comparison of California, Texas, Florida and New York, and when to get a lawyer, each with its official sources.
What can a prenup cover?
California, Texas and Florida use nearly the same list, from their versions of the Uniform Premarital Agreement Act. A prenup can cover:
- Property: each person's rights in property that either or both of them own, whenever and wherever it was acquired. The law counts income and earnings as property.
- Control of property: the right to buy, sell, use, transfer, lease, mortgage or otherwise manage and control it.
- What happens to property on separation, divorce or death, or when some other event happens or doesn't.
- A will or trust to carry out the agreement, and who gets the death benefit of a life insurance policy.
- Which state's law is used to interpret the agreement.
- Any other matter, including personal rights and obligations, that doesn't violate public policy or a law imposing a criminal penalty.
- Spousal support. Texas lets a prenup modify or eliminate spousal support, and Florida lets it establish, modify, waive or eliminate support. California's list leaves support out, and a separate rule limits support terms (see below).Tex. Fam. Code § 4.003(a)(4) · Fla. Stat. § 61.079(4)(a) · Cal. Fam. Code § 1612
- New York. An agreement may include a promise to make a provision in a will or a waiver of the right to elect against a will; the ownership and division of separate and marital property; the amount and length of maintenance and other terms of the marriage; and the custody, care, education and support of the couple's children, subject to section 240 of the Domestic Relations Law.N.Y. Dom. Rel. Law § 236(B)(3)
What a prenup can't do: child support, custody and support limits
The statutes put some things beyond a prenup's reach, and limit others:
- Child support. In California, Texas and Florida, the law says the same thing: the right of a child to support may not be adversely affected by a premarital agreement.Cal. Fam. Code § 1612(b) · Tex. Fam. Code § 4.003(b) · Fla. Stat. § 61.079(4)(b)
- Custody. None of those three statutes lists custody or parenting time among the things a prenup can settle. New York lets an agreement address custody and child support, but subject to section 240, under which the court makes custody and support orders as justice requires, having regard to the best interests of the child.N.Y. Dom. Rel. Law §§ 236(B)(3), 240(1)(a)
- Spousal support in California. A support term, including a waiver, is not enforceable if the spouse it is used against had no independent lawyer when signing, or if the term is unconscionable at the time of enforcement. Having a lawyer doesn't by itself make an otherwise unenforceable support term valid.Cal. Fam. Code § 1612(c)
- Spousal support in Florida. If cutting or ending support would make a spouse eligible for public assistance at separation or divorce, a court may still require the other spouse to pay enough support to avoid that, whatever the agreement says.Fla. Stat. § 61.079(7)(b)
- Spousal support in New York. Maintenance terms must have been fair and reasonable when the agreement was made and must not be unconscionable when the final judgment is entered. Spouses also can't contract to relieve either one of the duty to support the other in a way that leaves that spouse likely to become a public charge.N.Y. Dom. Rel. Law § 236(B)(3) · N.Y. Gen. Oblig. Law § 5-311
The Uniform Premarital Agreement Act: which states use it
The Uniform Premarital Agreement Act is a set of rules that a number of states have enacted as their own law. Texas's version says it must be applied to make the law uniform among the states that enact it. Three of the four states covered here have a version of it:
- California. Family Code sections 1600 to 1617 may be cited as the Uniform Premarital Agreement Act. California's version also has detailed tests for when a prenup was signed voluntarily and when a spousal support term holds up.Cal. Fam. Code §§ 1600, 1612(c), 1615(c)
- Texas. Subchapter A of Chapter 4 of the Family Code may be cited as the Uniform Premarital Agreement Act. Agreements made after the wedding are covered separately, in Subchapters B and C.Tex. Fam. Code §§ 4.009, 4.010
- Florida. Section 61.079 may be cited as the Uniform Premarital Agreement Act and applies only to proceedings under the Florida Family Law Rules of Procedure. It doesn't change the probate rules for agreements between spouses about inheritance rights.Fla. Stat. § 61.079(1), (10)
- New York. New York's rule doesn't carry the uniform act's name. It is in Domestic Relations Law section 236(B)(3), which covers agreements made before or during the marriage.N.Y. Dom. Rel. Law § 236(B)(3)
What makes a prenup enforceable?
In California, Texas and Florida, the statute sets the same basic rules:
- In writing and signed by both. It is enforceable without consideration, meaning nothing else has to be exchanged for it (in Florida, nothing other than the marriage itself).
- Takes effect at marriage. After the wedding, it can be amended or revoked only by a written agreement signed by both; Florida also covers abandoning it.
- Signed voluntarily. A prenup is not enforceable if the spouse challenging it proves they didn't sign voluntarily. In Florida, it also fails if it was the product of fraud, duress, coercion or overreaching.
- Fair disclosure, or a written waiver. A prenup that was unconscionable when signed is also not enforceable if, before signing, the challenging spouse wasn't given fair and reasonable disclosure of the other's property or financial obligations, didn't voluntarily and expressly waive more disclosure in writing, and didn't have, and couldn't reasonably have had, adequate knowledge of them. California's statute asks for a fair, reasonable and full disclosure.
- A judge decides unconscionability as a matter of law.
- Deadlines pause during the marriage. A statute of limitations for a claim under a prenup is tolled while the couple is married, though defenses such as laches and estoppel remain available.
California goes further. A court must treat a prenup as not signed voluntarily unless it finds, in writing or on the record, all of the following:
- The spouse had an independent lawyer when signing or, after being advised to get one, gave up that right in a separate writing. The advice must come at least 7 calendar days before the final agreement is signed.
- For an agreement signed on or after January 1, 2020, at least 7 calendar days passed between the spouse first getting the final agreement and signing it, whether or not they had a lawyer. This doesn't apply to nonsubstantive amendments that don't change the terms.
- A spouse without a lawyer was fully informed of the terms and basic effect of the agreement and the rights being given up, in a language they are proficient in. That explanation must be in writing and given before signing, and the spouse must sign a document saying they received it and who provided it.
- Neither the agreement nor those papers were signed under duress, fraud or undue influence, and both people had the capacity to sign.
- Any other factors the court finds relevant.
- New York. An agreement made before or during the marriage is valid and enforceable in a matrimonial action, such as a divorce, if it is in writing, signed by both and acknowledged or proven the way a deed must be to be recorded. A prenup can be acknowledged before certain people authorized to perform marriages.N.Y. Dom. Rel. Law § 236(B)(3)
Postnuptial agreements: agreements after the wedding
A postnup is an agreement spouses sign after they marry. The Texas State Law Library notes that these are often referred to as marital property agreements. The rules are not the same as for a prenup:
- California. Property rights set by law can be changed by a premarital agreement or another marital property agreement. A change in who owns property, called a transmutation, is valid only if made in writing with an express declaration by the spouse whose interest is harmed. Spouses owe each other the highest good faith and fair dealing, and neither may take unfair advantage of the other. Except as the law provides, spouses can't change their legal relations by contract with each other, except as to property.Cal. Fam. Code §§ 721(b), 852(a), 1500, 1620
- Texas. At any time, spouses can divide or exchange community property, agree that income from separate property will be separate, or convert separate property to community property. Each agreement must be in writing and signed by both. A partition or exchange agreement can be challenged on the same grounds as a prenup.Tex. Fam. Code §§ 4.102-4.105, 4.202, 4.203
- Florida. Section 61.079 covers agreements made before marriage. A spouse's rights in the other's estate, such as an elective share or homestead, can be waived before or after marriage in a written agreement, which a Florida resident signs in front of two witnesses. A waiver signed after marriage requires fair disclosure of each spouse's estate; before marriage, no disclosure is required.Fla. Stat. §§ 61.079(2), 732.702
- New York. The same rule covers agreements made before or during the marriage: in writing, signed by both and acknowledged.N.Y. Dom. Rel. Law § 236(B)(3)
Prenups in California, Texas, Florida and New York
| State | The law and formalities | When it isn't enforceable | Spousal and child support |
|---|---|---|---|
| California | Uniform Premarital Agreement Act, Family Code §§ 1600-1617. In writing and signed by both. Fam. Code §§ 1600, 1611 | Not signed voluntarily (to count as voluntary it needs, among other things, 7 calendar days with the final agreement if signed since 2020, and a lawyer or a separate written waiver); or unconscionable with no full disclosure. Fam. Code § 1615 | Can't adversely affect child support. A spousal support term fails without an independent lawyer or if unconscionable when enforced. Fam. Code § 1612 |
| Texas | Uniform Premarital Agreement Act, Family Code ch. 4, subch. A. In writing and signed by both. Fam. Code §§ 4.002, 4.010 | Not signed voluntarily; or unconscionable when signed, with no fair disclosure, no written waiver and no adequate knowledge. Fam. Code § 4.006 | Can't adversely affect child support. May modify or eliminate spousal support. Fam. Code § 4.003 |
| Florida | Uniform Premarital Agreement Act, Fla. Stat. § 61.079. In writing and signed by both. § 61.079(1), (3) | Not signed voluntarily; fraud, duress, coercion or overreaching; or unconscionable with no fair disclosure. § 61.079(7)(a) | Can't adversely affect child support. A support waiver can't leave a spouse eligible for public assistance. § 61.079(4)(b), (7)(b) |
| New York | Domestic Relations Law § 236(B)(3), before or during the marriage. In writing, signed and acknowledged like a deed. § 236(B)(3) | Not in writing, signed and acknowledged. Maintenance terms must have been fair and reasonable when made and not unconscionable at final judgment. § 236(B)(3) | Child custody and support terms are subject to § 240; no contract leaving a spouse likely to become a public charge. § 236(B)(3) · Gen. Oblig. Law § 5-311 |
These are the statutes' basic rules: whether a particular prenup holds up depends on how it was made and what it says. Other states set their own rules: start with your state's laws or your state court's self-help website.
Do I need a prenup lawyer?
The prenup laws of Texas, Florida and New York don't require either person to have a lawyer. In California a lawyer matters more: a spousal support term doesn't hold up against a spouse who had no independent lawyer when signing, and for the prenup to count as signed voluntarily, a spouse without a lawyer must waive one in a separate writing and receive a written explanation of the rights being given up.
Each of you can have your own lawyer. A family lawyer writing for the State Bar of Texas says that, done correctly, both parties retain an attorney. California's courts list a signed prenuptial or postnuptial agreement among the reasons to talk to a lawyer about property in a divorce, and note that you can consult a lawyer just for the property and debts part of the case.
Talk to a prenup lawyer or a legal aid office before signing if one of you has much more property or income, there are children from an earlier relationship, you are asked to give up spousal support, or you receive a draft prepared by the other person's lawyer.
Common questions
What is a prenup?
A prenup, or prenuptial agreement, is a written contract two people sign before they marry that sets out each spouse's property and financial rights if the marriage ends in divorce or death. It takes effect only when they marry. Each state decides what it can cover; in California, Texas and Florida it may not adversely affect a child's right to support.
What does a prenup do?
It can set who owns and controls property, including income and earnings; what happens to property on separation, divorce or death; in some states, spousal support; a will or trust to carry out the agreement; life insurance death benefits; and which state's law applies. In California, a premarital agreement can change the property rights the law would otherwise set.
Can a prenup protect an inheritance?
A prenup can set each person's rights in property whenever it was acquired, and what happens to it on divorce or death. A family lawyer writing for the State Bar of Texas describes a prenup as designed to protect what a person brings to the marriage, such as an inheritance. In Florida, rights in a spouse's estate can also be waived in a written agreement signed in front of two witnesses.
What is a postnuptial agreement?
An agreement spouses sign after the wedding, often referred to as a marital property agreement. In Texas, spouses can at any time divide community property or convert separate property, in a signed writing. California lets spouses change property rights by a marital property agreement, and New York's rule covers agreements made before or during the marriage. Florida's premarital agreement law covers only agreements made before marriage.
How do I get a prenuptial agreement?
Agree on the terms with your future spouse, put them in writing and both sign before the wedding. The statutes look at whether each of you had fair disclosure of the other's property and financial obligations. In California, allow at least 7 calendar days between getting the final version and signing; in New York, it must also be acknowledged like a deed.
Do I need a lawyer for a prenup?
The prenup laws of Texas, Florida and New York don't require one. In California, a spousal support term isn't enforceable against a spouse who had no independent lawyer when signing, and a spouse without a lawyer must waive one in a separate writing and get a written explanation of the rights being given up. See Find a lawyer or free legal aid.
Official sources
- California Family Code § 1600: the Uniform Premarital Agreement Act (short title) leginfo.legislature.ca.gov
- California Family Code § 1610: definitions of premarital agreement and property leginfo.legislature.ca.gov
- California Family Code § 1611: in writing and signed by both parties leginfo.legislature.ca.gov
- California Family Code § 1612: what a premarital agreement may cover; child support and spousal support limits leginfo.legislature.ca.gov
- California Family Code § 1613: effective upon marriage leginfo.legislature.ca.gov
- California Family Code § 1614: amendment or revocation after marriage leginfo.legislature.ca.gov
- California Family Code § 1615: enforcement, voluntariness, independent counsel and the 7-day rule leginfo.legislature.ca.gov
- California Family Code § 1617: statute of limitations tolled during marriage leginfo.legislature.ca.gov
- California Family Code § 1500: property rights may be altered by a premarital or marital property agreement leginfo.legislature.ca.gov
- California Family Code § 1620: contracts between spouses limited to property leginfo.legislature.ca.gov
- California Family Code § 852: transmutation of property must be in writing leginfo.legislature.ca.gov
- California Family Code § 721: spouses' duty of the highest good faith and fair dealing leginfo.legislature.ca.gov
- California Courts Self-Help Guide: Property and debts in a divorce (when to talk to a lawyer) courts.ca.gov
- Texas Family Code, Chapter 4: premarital and marital property agreements (§§ 4.001-4.010, 4.101-4.106, 4.201-4.206) legis.texas.gov
- Texas State Law Library: Marriage in Texas, premarital and marital property agreements sll.texas.gov
- Texas Bar Journal (State Bar of Texas): Early Decision, when is it smart to have a prenup? (January 2018) texasbar.com
- Florida Statutes § 61.079 (2026): premarital agreements (Uniform Premarital Agreement Act) flsenate.gov
- Florida Statutes § 732.702 (2026): waiver of spousal rights before or after marriage flsenate.gov
- New York Domestic Relations Law § 236, Part B(3): agreements made before or during the marriage nysenate.gov
- New York Domestic Relations Law § 240: custody and child support orders, best interests of the child nysenate.gov
- New York General Obligations Law § 5-311: agreements between spouses that are void nysenate.gov
Related
This page explains the law in general terms. It is not legal advice about your situation. Justice is not a law firm and is not affiliated with any court or government agency.