What to Include in a Prenuptial Agreement: A Complete Checklist
Why Prenuptial Agreements Matter
A prenuptial agreement (prenup) is a legally binding contract between two people planning to marry. It outlines how assets, debts, and financial matters will be handled during the marriage and in the event of divorce.
While no one enters a marriage expecting it to end, a prenup provides clarity, reduces conflict, and protects both parties' interests.
Essential Clauses to Include
1. Identification of Separate Property
List all assets each party brings into the marriage — bank accounts, investments, real estate, vehicles, and personal property. This is often the most important clause because it prevents disputes about what was "yours" vs. "ours."
2. Treatment of Marital Property
Define how property acquired during the marriage will be classified. In community property states (like California, Texas, and Arizona), marital assets are typically split 50/50. A prenup can override this default.
3. Debt Allocation
Specify who is responsible for pre-existing debts (student loans, credit card debt) and how new debts incurred during the marriage will be handled.
4. Spousal Support (Alimony)
Address whether spousal support will be paid, how much, and for how long. Some couples waive it entirely; others set formulas based on marriage duration.
5. Business Interests
If either party owns a business, the prenup should address:
- Whether the business is separate property
- How business growth during the marriage is treated
- Valuation methods if the business needs to be divided
6. Retirement and Benefits
Outline how retirement accounts (401k, IRA, pensions) will be divided. Federal law (ERISA) governs some of these, so jurisdiction-specific legal advice is important.
7. Estate Planning Integration
Coordinate the prenup with wills and trusts. Without this, a prenup and a will could contradict each other.
8. Sunset Clause
Many prenups include a provision that the agreement expires after a certain number of years (e.g., 10 or 20 years of marriage).
What You Cannot Include
- Child custody or support — courts decide these based on the child's best interests at the time of divorce
- Personal lifestyle clauses — things like household chores, weight requirements, or frequency of visits to in-laws are unenforceable
- Anything unconscionable — a prenup that leaves one party destitute will likely be thrown out
State-Specific Considerations
Prenup laws vary significantly by state:
- California follows the Uniform Premarital Agreement Act (UPAA) and requires independent counsel for the waiver of spousal support
- New York requires notarization and is generally more permissive about enforcement
- Texas is a community property state where prenups must be in writing and signed voluntarily
How to Get Started
You can use ArguLens AI to generate a jurisdiction-specific prenuptial agreement draft in minutes. Our AI creates comprehensive drafts with all standard clauses, tailored to your local laws. Remember — always have a licensed attorney review any agreement before signing.
This article is for informational purposes only and does not constitute legal advice.