What You Can and Cannot Include in a Prenup

Sep 20, 2019 | Prenuptial Agreements

prenuptial agreement is a written contract that fiancées sign before they get married that list their property and specifies what property rights they will have after they get married. This agreement can be comprehensive and include many provisions. However, state law may or best practices may dictate certain provisions that should not be part of a prenuptial agreement.

Provisions that Can be Included

There are a number of provisions that may be included in a prenuptial agreement. Some provisions may deal with the following issues:

Classification of Separate and Marital Property

The prenuptial agreement may definitively classify separate and marital property. This classification allows a couple to avoid the state’s default laws that would otherwise apply in the event of divorce. For example, a spouse may have classified a family business as separate property in a prenuptial agreement, which would prevent his or her spouse from saying that the business was marital property subject to division.


A prenuptial agreement may specify that each spouse is only responsible for his or her own debts. This can help prevent creditors from later trying to collect from the other spouse if the debtor defaults on the debt. A prenuptial agreement may allow spouses to shield each other from their own debts.

Estate Plan Provisions

A prenuptial agreement may also address provisions that apply in case of death. The prenuptial agreement may state what property the surviving spouse will or will not have a claim to in case the spouse dies.

Provisions for Children from a Previous Relationship

The prenuptial agreement may be able to protect the property interests of children from another marriage in case the spouse passes away. The spouse may wish to leave separate property to their children from prior relationships. This may be especially important to preserve a family heirloom that is cherished by the lineal descendants.

Maintenance of Separate Finances

A prenuptial agreement may specify that the spouses will keep their finances separate during the marriage. This can allow spouses to keep control of their own bank accounts and avoid commingling funds that could otherwise result in changing separate funds to marital funds.

To watch our related video, click here: What Can Be Included in a Prenup

Provisions that Cannot be Included

Certain provisions may not be permitted in prenuptial agreements. Some states will simply strike the prohibited language from the prenuptial agreement and leave the remaining provisions intact. However, other states may invalidate the entire prenuptial agreement if prohibited provisions are included in it. State law may prohibit the following types of provisions in prenuptial agreements:

Anything That Encourages Divorce

All states have public policies that favor marriage and discourage divorce. Prenuptial agreements cannot encourage divorce, such as giving a spouse an incentive to get divorced.

Child Support

Some states do not allow prenuptial agreements to waive child support or dictate how much support should be paid. Child support is typically considered the property of the child and not subject to an alternative arrangement by the parents. The court has the obligation to properly calculate the amount of child support that should be paid.

Child Custody

Likewise, prenuptial agreements may not dictate which parent will have primary custody. The prenuptial agreement should not place restrictions on child custody or visitation. If the court makes the determination of child custody, it is based on the best interest of the child.

Interested in learning more about prenups? Check out the rest of our blog on everything prenuptial agreements here, or watch our informational videos here.

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