Do I Need a Prenup? Should I Get One?

Should I get a prenup? If you have significant separate property, own or might start a business, expect an inheritance, or have children from a prior relationship, you probably need a prenup. If none of those apply, you probably don't. This page walks through the actual criteria for whether you should get a prenup — not the marketing ones — and explains the default rules a prenup would override.

This isn't legal advice. Use this guide to inform your decision, then talk to a family law attorney licensed in your state.

The 5 questions to ask yourself

1. Do either of you have significant separate property?

Real estate, retirement accounts, brokerage holdings, business interests, valuable personal property. In every state, separate property stays separate in theory — but it commingles fast. Without a prenup, appreciation on separate property during the marriage may be deemed marital. A prenup locks down what stays separate and how appreciation is treated.

2. Do either of you own or plan to start a business?

This is the strongest single reason to get a prenup. Without one, the non-owner spouse may end up entitled to a share of the business\'s appreciation, voting rights in succession, or claims against business assets. A prenup says: the business is separate property, appreciation stays separate, and the other spouse waives any claim — regardless of how successful the company becomes.

3. Are you expecting an inheritance?

Inheritance is separate property by default. But it loses that status the moment it\'s commingled with marital funds. A prenup spells out: inheritance received during marriage stays separate; appreciation on inherited assets stays separate; and what happens if inherited funds are spent on joint purposes.

4. Do either of you have children from a prior relationship?

A prenup combined with an estate plan ensures that the assets you want to pass to your children from a prior marriage actually pass to them — instead of being claimed by your new spouse under state intestacy or community property rules. Especially important in community property states.

5. Are your incomes substantially asymmetric?

A high-earning spouse marrying a substantially lower-earning spouse should think carefully about spousal support. The default in most states is open-ended; a prenup can set limits. The lower-earning spouse should also think carefully — they may want to negotiate more support than the default, not less, especially if they\'re leaving a career to care for children.

Who probably doesn't need one

• Both spouses on W-2 income with similar earnings.
• No business interests, current or planned.
• No significant separate property.
• No children from prior relationships.
• No expected inheritance.
• You live in an equitable-distribution state (not one of the 9 community property states).

If all six apply, the default state rules will probably produce a reasonable result if the marriage ends. The prenup cost may not justify the marginal protection.

What your state\'s default actually does

The thing a prenup overrides is your state\'s default rule for what happens at divorce. There are two main flavors:

• Community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin): property and earnings acquired during the marriage are jointly owned and split equally. Pre-marital separate property stays separate if it stays separate.
• Equitable distribution states (everywhere else + DC): marital property is divided fairly — "fairly" doesn\'t mean equally. Courts consider income, contributions, length of marriage, and dozens of other factors.

To see your specific state\'s rules and what a prenup would override, find your state in the state-by-state guide. To check whether your specific situation has enforceability risks, take the prenup quiz.