ABA Family Legal Guide

Family Law

Money Matters During Marriage

Premarital Agreements

What does a spouse give up by signing a premarital agreement?

In signing an agreement, a spouse agrees to have his or her property rights and support obligations determined by the agreement rather than by the usual rules of law that a court would apply on divorce or death. An agreement can give the spouse more or less than state law allows. In most states, courts divide property as the court considers fair, and the result is less predictable: The split could be fifty-fifty or something else. If one spouse dies, courts normally follow the instructions of that person's will, but in most states the surviving spouse is entitled to one-third to one-half of the estate regardless of what the deceased spouse's will says. If the husband and wife have signed a valid premarital agreement, that agreement will supercede the usual laws for dividing property and income upon divorce or death. In many cases, the less-wealthy spouse will receive less under the premarital agreement than he or she would receive under the usual laws of divorce or wills.