You may be wondering how long a prenup lasts because every rose has its thorn, and prenups probably lose their effect at some point, right? Well, not necessarily! Luckily for us, prenups (i.e., the roses) don’t have an expiration date unless you want them to have one (more on this later). But there is one caveat (i.e., the thorn), prenups can be thrown out by a court for various reasons (more on this below). However, if you create a valid and enforceable prenup, it can last until divorce, death, and even beyond, depending on the terms included within your prenup.
A Quick Prenup Refresher
Prenuptial agreements, commonly known as prenups, are contracts signed by couples before getting married. These agreements lay out how assets, debts, alimony, and other issues will be handled in case of divorce or separation. Prenups also can act as an emotional document by facilitating in-depth communication and setting expectations for each other.
How Long Does a Prenup Last?
Technically, a valid and enforceable prenuptial agreement lasts until death or divorce, and sometimes even after that, if there are terms that are laid out indefinitely (such as a confidentiality clause). However, as mentioned earlier, a prenup may become unenforceable under certain circumstances or may be purposely expired by including a sunset clause.
Sunset Clauses (including an “expiration clause” as an option)
A sunset clause is a cutesy name for a provision in a prenuptial agreement that selects a date or event on which the contract will expire. For example, it could say something like, “This prenup will be null and void on December 1, 2050,” or “This prenup will be null and void as of Spouse A and B’s tenth wedding anniversary.”
Why would someone get a sunset clause? Well, these clauses can be a useful option for couples who want to establish certain terms for a limited period. This can be used as a negotiation chip, as well, when deciding on the terms of the prenup.
Understanding the Validity of Prenuptial Agreements
Every contract in America has certain validity requirements. These may be putting the contract in writing, signing it, notarizing it, and/or having witnesses to the agreement. For prenup agreements, the validity requirements are dictated by state, so what is required of a valid prenup in one state may not be the same exact validity requirements in another state.
Although states’ validity requirements may vary slightly, there are some commonly accepted validity requirements that most states require:
- The prenup is in writing
- The prenup is signed by both parties before the wedding
- The prenup is notarized
- The prenup is witnessed by one or more witnesses at the time of signing (fewer states require this one)
- Both parties must fully disclose all their assets and debts
- Both parties must have had adequate time to review and understand the agreement (no last-minute prenups!)
If any of these criteria are not met (and possibly other criteria, depending on your state), a prenuptial agreement may not be valid.
Can a Prenup be Thrown Out?
Although an unenforceable prenup is not synonymous with an expiration date, it does relate to the question of “How long do prenups last?” For starters, when we say “unenforceable,” we are basically saying that the prenup is “thrown out” or “not held up in court.” The reasons that a prenup can be invalidated depend on your state laws. What is considered unenforceable in one state may not be the same for another state.
Many states commonly recognize several reasons why a prenup may be unenforceable. Here are some examples of that:
- Lack of adequate financial disclosure
- The prenup was not entered into voluntarily (there was some level of duress or coercion involved)
- The prenup includes unconscionable terms, and/or the prenup as a whole is considered unconscionable either at the time of the signing and/or at the time of enforcement
- The prenup includes unlawful terms
- The prenup was signed too close to the wedding day or after the wedding day
Don’t forget about the validity aspect of the contract; the prenup should be valid, which may include things like making sure it was signed, notarized, and/or witnessed in the required manner as laid out by the state.
As you can see above, these are just a few commonly recognized ways a prenup can be thrown out, but it can vary from state to state. This is not an “expiration date” per se, but just another way a prenup may not “last.”
Validity vs. Enforceability
We totally get that all of these terms might be confusing, but we’re going to clear it up for you. You should understand that a prenup can be technically valid but not enforceable. An invalid prenup is not enforceable because it does not meet the legal requirements to be considered a contract, while an unenforceable prenup may be valid but cannot be enforced due to specific circumstances.
Can You Change or Revise a Prenup?
Yes, most states allow you to amend your prenup. An amendment to a prenup simply means you can change or revise the original agreement. However, any changes or revisions must follow your state’s laws for validity and enforcement. For example, many states require that the same formalities be followed for the amendment as was required for the original agreement, such as putting it in writing and notarizing it.
Frequently Asked Questions (FAQs) regarding how long prenups last
We’ve gathered a few commonly asked questions regarding prenups and if they ever expire below.
Q: How often should I review my prenup?
A: Some lawyers may recommend that you review your prenup every two to three years or whenever a significant change occurs, such as the birth of a child, a significant increase or decrease in income, or the acquisition or loss of certain assets.
Q: Can a prenup be challenged in court?
A: Yes, a prenuptial agreement can be challenged in court if one of the parties wants to argue that it is unenforceable for any number of reasons laid out by state law.
Q: Do prenups expire after one spouse dies?
A: Not necessarily; many prenups include clauses that specifically lay out what should happen in the event of the death of either spouse, such as a death clause. In other words, your prenup may still have legal significance even if you or your spouse are dead.
Q: What is a sunset clause, and why do people use them?
A: A sunset clause is an optional provision people can put in their prenups that lay out a specific date or event in which the prenup will expire. Here are some reasons people choose to use a sunset clause:
- Provides a sense of security to some people knowing that the prenup will expire at some point
- They can phase out certain conditions of the prenup overtime
- It can be used as a negotiation chip for someone who is against getting a prenup
Q: What happens after a sunset clause goes into effect (i.e., the prenup expires)?
A: When a sunset clause goes into effect (meaning the prenup successfully “expires”), then the default laws of the state would apply should the couple get a divorce at any point after the expiration.
Q: What happens if a prenup is deemed unenforceable by a court?
A: Then your prenup will be considered null, and you and your partner will need to proceed with your divorce under the default laws of the state instead of the rules you laid out in your prenup.
The Bottom Line
So, to sum it up, prenups do not expire automatically. They are created to last through a divorce, death, and sometimes beyond both of those events, depending on your contract terms. However, you can choose to have your prenup expire at a set time (this is the sunset clause). The one caveat to keep in mind is the validity and enforceability of your prenup. If your prenup is not valid and enforceable, it could be thrown out by a court.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]