There is an uncharted area of law that is quickly becoming a hot legal topic and it’s a discussion that has yet to find solid ground: Can we include embryo disposition in a prenup? If so, how do we do so? To cut right to the chase, there is no defined “yes or no” to this question, as there is no current California case law on the issue. The bottom line is that you can include embryo disposition in your prenup, but whether or not it will be enforced is unclear. We’ll delve into the fascinating intricacies of this newly explored territory and the important considerations you’ll need to navigate it safely.
But first…what is a prenup?
A prenuptial agreement, often referred to as a “prenup,” is a legally binding contract entered into by a couple before they get married. This written agreement serves as a roadmap for their financial and property arrangements during their marriage and in the event of a divorce, separation, or the death of one of the spouses. Prenups have the flexibility to address various matters, spanning from the division of assets and pet ownership to other non-financial aspects (this is where an embryo clause, being another non-financial consideration, might arise).
Valid prenups in CA
You might be wondering, what makes a valid prenup in California? Well, here’s the lowdown on creating a prenup that stands up to the California sunshine. First things first, put it in writing! No verbal agreements here—grab that pen and paper. A prenup needs to be written and voluntarily signed (voluntarily means with no duress or coercion). Your terms should not be against public policy nor should they be unlawful. Don’t forget about the 7-day rule. It’s a CA-specific rule requiring a little breathing room for the prenup. It mandates that there be seven calendar days between the finalization of the agreement and the signing of it.
Then, there’s the financial disclosure. Lay it all out on the table—no hiding behind the palm trees when it comes to your finances. And speaking of teamwork, it’s advisable for both of you to have lawyers on board. If one of you is skipping the lawyer, there’s a mandatory waiver to sign, but hold on—there’s no skipping representation if you’re tinkering with spousal support in the prenup. So, grab your shades, soak in the California vibes, and follow these steps for a prenup that’s as golden as the state itself.
What can go into a CA prenup?
It’s important to understand what the law says about the contents of a prenup. Let’s break down what can (and cannot) go into a prenup in CA, according to California Family Code Section 1610:
- Rights and duties regarding shared property, no matter when or where it’s acquired.
- Matters handling, managing, and controlling property in various ways, including buying, selling, and more.
- Property distribution during separation, divorce, death, or any other event.
- Creating a will, trust, or other plan to follow the agreement’s terms.
- Life insurance policy ownership and benefit distribution upon death.
- Any other issues, like personal rights and duties, as long as it’s not against the law or public policy.
But remember – California law won’t let you include child support or custody decisions in a prenup. So, no, you cannot include requirements for child support or pre-determined custody plans before your marriage takes place. (Keep this little tidbit in mind when we start discussing embryos below!).
So, what about embryos? Can we include an embryo clause in our CA prenup?
Okay, here’s the scoop: Courts have yet to rule on this matter in California. However, it will eventually come down to whether or not embryos will be considered property or people in CA. That’s what makes this area of law so intriguing—because the generation of embryos is a relatively new scientific notion and has yet to be adjudicated in a CA court in the context of prenups.
We turned to the experts to learn more. We asked Attorney Erin O’Kane Allen her thoughts on how California may classify embryos in a prenup. Attorney Allen told us, “Under California law, you can only include property in a premarital agreement. If embryos are not considered persons but a special type of property where the creators have decision-making authority over the disposition of the embryos, then it follows that they could be accounted for in a premarital agreement. In further support of this proposition, California’s Health & Safety Code section 125315 indicates that a patient should be allowed to make dispositional decisions regarding their embryos in the future prior to undergoing fertility treatment.”
To sum it up, if embryos are considered a special type of property, where the couple who created them get to make the decisions, then it may be an enforceable clause one day. On the other hand, if they are considered people, it’s likely not going to be an enforceable prenup clause.
What you can put in your CA prenup regarding embryos
There is one thing you can do right now regarding this topic of embryo clauses in your CA prenup. You may be able to include financial terms related to existing embryos, such as storage fees. However, it’s essential to steer clear of language associated with future child support. Remember, California law specifically says you cannot include child custody or support clauses in your prenup.
Attorney Allen explained, “A couple could account for embryos already created by one or both of them and for embryos to be created during the marriage. They could also determine who would continue to pay the storage fees for the embryos in the event of a divorce. However, they would want to steer clear of including anything that looks like it relates to the support of a future child created from those embryos. It would follow the idea that they would not want to place into the premarital agreement anything regarding one of the parties giving up rights to the child created from the embryos.”
What other states say about embryos as people or property
Even though California doesn’t have any cases on whether or not an embryo is a person or property, there are some other states that have ruled on the matter. For instance, in Tennessee, the Tennessee Supreme Court determined that embryos do not enjoy the protections of persons under Tennessee or federal law. It also determined that embryos are not strictly property, but are a category somewhere in between, afforded with special consideration due to their possibility for life. The TN Court also stated that the creators of the embryos have an interest in the nature of ownership of the embryos to the extent that they have decision making authority concerning disposition of the pre-embryos within the scope of policy set by law. (See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992)).
What happens in California embryo disputes
Let’s talk about what happens when a California couple is disputing over ownership of their embryos. In the realm of California case law, most courts will defer to what any pre-existing agreements say regarding the embryos. For example, did the couple have an embryo agreement beforehand that says what will happen to them? While it’s not a guaranteed rule of thumb that courts will fully endorse these agreements, it’s a factor they may turn to. In turn, it would make sense that having a prenuptial agreement in place with specific embryo clauses is a good idea.
Attorney Allen reiterated this notion by telling us, “In cases involving embryo disputes, California Courts have looked into whether or not there is an agreement between the parties to determine ownership in the event of a dispute. In cases where there has been an agreement, the court has typically followed the terms of the agreement. From this, we might conclude that if there was a premarital agreement in place, the courts could look to that agreement to determine the disposition of the embryos.”
But, (and this is a big but), no court has officially ruled on this yet. Attorney Allen highlighted, “However, as this issue has not been determined by a court, it is important that couples understand the risk they would be taking by including embryos in their premarital agreement.” The risk here being that if you include an embryo clause in your prenup, there is a chance it may not be enforceable and your wishes as to embryo disposition in the event of divorce or death may not be upheld.
What other states say about the disposition of embryos in a dispute
A Court in Maryland dealt with a couple disputing in their divorce over who should have ownership over their pre-embryos. The court ruled that any previous agreement the couple had about what to do with their pre-embryos would prevail. If there was no agreement, the courts should seek to make a decision by balancing the parties’ interests. The court also made sure to mention that boilerplate language in third‑party form contracts that lack expression or direction from the couple will not qualify as express agreement regarding what to do with pre‑embryos. (See Jocelyn P. v. Joshua P., No. 2125, Sept. Term, 2019 (Maryland Court of Special Appeals, April 29, 2021).
The topic of embryos is one that continues to captivate and intrigue in the legal world. The long and the short of it is that it’s unclear whether or not an embryo clause will be enforced in California. It may be a good idea to include it in your prenup, but proceed with caution because it could still be stricken from your agreement. It comes down to whether or not California considers embryos people or property. We saw that in other states, such as Tennessee, they fall into a middle category, somewhere between people and property. Only the future will hold what will happen to the law in this area.
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]