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Prenuptial Agreements: A Comprehensive Guide for All Couples

Learn everything you need to know about prenuptial agreements, how they protect your assets, and why they're valuable for couples with children, young couples, blended families, and those with significant assets.

Introduction

A prenuptial agreement (commonly called a 'prenup') is a legal contract created by two people before they marry that typically outlines how assets and debts will be divided in the event of divorce or death. While often associated with wealthy individuals protecting their fortunes, prenups serve many practical purposes for couples across various life situations. This document can help clarify financial rights and responsibilities, protect family businesses, shield one spouse from the other's debts, and establish clear guidelines for property division. Whether you're entering marriage with children from previous relationships, significant assets, or simply want clarity about your financial future together, understanding prenuptial agreements is an important step in building a secure foundation for your marriage.

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Key Things to Know

  1. 1

    Prenuptial agreements must be executed well before the wedding (at least 30 days is recommended) to avoid claims of coercion or duress.

  2. 2

    Both parties must provide complete and honest financial disclosure for the agreement to be valid.

  3. 3

    Each person should have their own independent legal counsel review the agreement before signing.

  4. 4

    Prenups cannot determine child custody or child support amounts, as these must be decided based on the best interests of the child at the time of divorce.

  5. 5

    The agreement should be reviewed and potentially updated after major life events such as the birth of children, significant inheritance, or substantial changes in financial circumstances.

  6. 6

    State laws vary regarding prenuptial agreements, so it's essential to work with an attorney familiar with the laws in your jurisdiction.

  7. 7

    A well-crafted prenup promotes financial transparency and communication, which can strengthen your relationship rather than undermine it.

  8. 8

    For blended families, a prenuptial agreement should work in conjunction with your estate plan to ensure children from previous relationships are protected.

Key decisions before you file

Before you file a Prenuptial Agreement in Massachusetts, a few decisions shape the document: which option to choose and what each one means. The Prenuptial Agreement guide walks through them.

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Massachusetts Requirements for Prenuptial Agreement

  • Uniform Premarital Agreement Act Compliance (Massachusetts common law; DeMatteo v. DeMatteo, 436 Mass. 18 (2002))

    Massachusetts has not adopted the Uniform Premarital Agreement Act, but follows common law principles for prenuptial agreements. The agreement must comply with Massachusetts contract law principles and case law standards established in cases like DeMatteo v. DeMatteo.

  • Full and Fair Disclosure (M.G.L. c. 209, § 25; Rosenberg v. Lipnick, 377 Mass. 666 (1979))

    Both parties must provide complete and accurate disclosure of all assets, income, and liabilities prior to execution. Failure to disclose material information may render the agreement unenforceable under Massachusetts law.

  • Independent Legal Representation (DeMatteo v. DeMatteo, 436 Mass. 18 (2002); Ansin v. Craven-Ansin, 457 Mass. 283 (2010))

    Each party should have the opportunity to consult with independent legal counsel before signing the agreement. While not absolutely required, lack of independent representation may be a factor in determining enforceability.

  • Voluntary Execution (M.G.L. c. 209, § 25; Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015))

    The agreement must be entered into voluntarily, without duress, coercion, or undue influence. Timing is important; agreements signed very close to the wedding date may be scrutinized for evidence of coercion.

  • Conscionability at Execution (DeMatteo v. DeMatteo, 436 Mass. 18 (2002))

    The agreement must be conscionable (fair and reasonable) at the time of execution. Courts will examine whether the terms were fair and reasonable for the parties at the time they entered into the agreement.

  • Conscionability at Enforcement (Ansin v. Craven-Ansin, 457 Mass. 283 (2010))

    Massachusetts courts may also consider whether the agreement is conscionable at the time of enforcement. If circumstances have changed dramatically making enforcement unconscionable, the court may refuse to enforce certain provisions.

  • Child Support Provisions (M.G.L. c. 208, § 28; Knox v. Remick, 371 Mass. 433 (1976))

    Provisions attempting to waive or limit child support obligations are unenforceable. Courts retain jurisdiction to determine child support regardless of prenuptial terms, as this right belongs to the child, not the parents.

  • Child Custody Provisions (M.G.L. c. 208, § 31; Custody of Kali, 439 Mass. 834 (2003))

    Provisions predetermining child custody arrangements are not binding on Massachusetts courts. Courts will always make custody determinations based on the best interests of the child at the time of divorce.

  • Alimony Waiver Provisions (M.G.L. c. 208, § 34; Alimony Reform Act of 2011; DeMatteo v. DeMatteo, 436 Mass. 18 (2002))

    Massachusetts allows waiver of alimony in prenuptial agreements, but courts may scrutinize such provisions if enforcement would leave one spouse eligible for public assistance or if circumstances have changed dramatically.

  • Separate Property Designation (M.G.L. c. 208, § 34)

    The agreement must clearly identify which assets will remain separate property and which will be considered marital property subject to division upon divorce, consistent with Massachusetts property division laws.

  • Estate Rights Provisions (M.G.L. c. 191, § 15; M.G.L. c. 209, § 25)

    Massachusetts allows spouses to waive certain inheritance rights in prenuptial agreements, including statutory rights to elect against a will, but such waivers must be explicit and made with full knowledge.

  • Sunset Provisions (Ansin v. Craven-Ansin, 457 Mass. 283 (2010))

    Massachusetts recognizes the validity of sunset provisions that cause the agreement to expire or modify after a certain period of time or upon specific events (such as the birth of children).

  • Choice of Law Provisions (Bushkin Associates, Inc. v. Raytheon Co., 393 Mass. 622 (1985))

    Massachusetts courts generally honor choice of law provisions in prenuptial agreements, but may override them if the chosen law violates Massachusetts public policy or if Massachusetts has a materially greater interest in the matter.

  • Federal Tax Considerations (Internal Revenue Code §§ 1041, 2503, 2523)

    The agreement should address federal tax implications of property transfers, including potential gift tax consequences, capital gains treatment, and estate tax considerations.

  • ERISA Compliance (Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1055(c))

    Waiver of rights to retirement benefits governed by ERISA requires specific compliance with federal law. A spouse cannot waive rights to qualified retirement benefits in a prenuptial agreement alone; a separate waiver is required after marriage.

  • Domestic Violence Provisions (M.G.L. c. 209A; Massachusetts public policy)

    Massachusetts public policy prohibits provisions that would appear to encourage or facilitate domestic violence or penalize a spouse for seeking protection from abuse.

  • Modification and Amendment (Ansin v. Craven-Ansin, 457 Mass. 283 (2010))

    The agreement should include provisions for how it may be modified after marriage. Under Massachusetts law, post-nuptial modifications require consideration and must meet standards established in Ansin v. Craven-Ansin.

  • Severability Clause (Massachusetts contract law principles)

    Massachusetts courts may enforce portions of a prenuptial agreement even if other sections are deemed unenforceable, provided the agreement contains a proper severability clause.

  • Financial Support During Marriage (M.G.L. c. 209, § 1)

    Massachusetts recognizes the duty of spouses to support each other during marriage. Provisions attempting to eliminate this duty entirely may be unenforceable as against public policy.

  • Homestead Rights (M.G.L. c. 188, §§ 1-10)

    Massachusetts homestead protection laws provide certain protections for a family's primary residence. The prenuptial agreement should address whether and how homestead rights are affected.

Frequently Asked Questions

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