9092 / What is a prenuptial agreement?

A prenuptial (or antenuptial) agreement is an agreement entered into before marriage by two individuals who plan to become spouses. These agreements are generally entered into in contemplation of the possibility of a future divorce, and most commonly provide the terms for disposition of property upon divorce.¹ A prenuptial agreement may provide for the disposition of property held as separate property by each spouse before the marriage, and often provides a description of the property that one or both spouses are entitled to receive in the event of a divorce.

In some cases, prenuptial agreements also govern one spouse’s rights to property upon the death of the second spouse (for example, the agreement may bar the surviving spouse’s right to elect against enforcement of the deceased spouse’s will, which would generally allow the surviving spouse to receive property despite the terms of the decedent’s will to the contrary).²

Prenuptial agreements also commonly provide that certain provisions of the agreement itself (or the entire agreement) will terminate after the spouses have been married for a certain number of years, or that the agreement will only be triggered if one spouse engages in certain specified behaviors that lead to a divorce (i.e., infidelity, substance abuse, financial irresponsibility).

For more information on the general requirements for establishing a valid prenuptial agreement, see Q 9093. For information on separation agreements and postnuptial agreements, see Q 9095 to Q 9097.

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1.  See, e.g., Daugherty v. Daugherty, 816 N.E.2d 1180 (Ind. Ct. App. 2004); Owen v. Owen, 233 W. Va. 521, 759 S.E.2d 468 (2014).