Is there anything I can’t include in a prenup?

For a long time, even mentioning a prenup seemed taboo. Recently however, people are starting to realize the practical advantages of such a premarital agreement. It offers spouses with valuable assets a chance to protect the property they’ve earned should a separation occur down the line. This could be stock options, retirement plans, luxury homes or other items of value.

While prenups are fairly flexible, California does have laws about what types of provisions can not be included – as well as scenarios in which provisions may not be enforceable.

What can’t be included in a prenup

For the most part, couples can put just about anything in a premarital agreement. That includes:

  • Defining separate and marital property
  • The right to manage or control certain property
  • The creation of a will or trust to execute the agreement
  • Ownership rights of a life insurance policy
  • Any other matters, “including their personal rights and obligations”

However, any provision that is illegal or violates public policy cannot be in a premarital agreement – or, if it is, the courts won’t accept it as valid.

The law specifically mentions the rights of a child, noting they can not be “adversely affected” by a prenup. That means the parents do not have full authority to determine child support in a prenup, as those payments are for the courts to decide at the time of the separation.

In addition, a couple can include a provision defining spousal support in a prenup, but that provision can’t be unconscionable – essentially unfair – at the time of enforcement.

When a prenup is not valid

There are also instances in which the courts may deem an entire prenup invalid, such as:

  • One party did not voluntarily agree to it
  • One party wasn’t given fair and full disclosure of the other’s property and obligations
  • The spouse receiving the agreement did not have seven full days to review it before signing
  • The prenup is not in writing
  • The prenup is not signed by both parties

If you are considering a premarital agreement, it is often a good idea to have an attorney on-hand to help. Not only may they be able to review the language for any potential issues, they can help ensure the process follows all California laws, and that the prenup meets all criteria needed to be valid.

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