What Should a Prenuptial Agreement Include?

A well-drafted prenup covers seven categories: separate property, marital property rules, debt allocation, business interests, inheritance handling, spousal support, and dispute resolution. Anything outside those categories — child custody, lifestyle clauses, infidelity penalties — is either unenforceable or risky. This page walks through each in plain English. It isn't legal advice; the document itself should be drafted by a family law attorney in your state.

The 7 things to include

1. Separate property — what each spouse brought in

Every asset owned before the marriage gets listed: real estate, retirement accounts, brokerage accounts, business interests, vehicles, collectibles. Each with a current value and the date of valuation. The list becomes Schedule A (yours) and Schedule B (theirs), attached to the agreement.

The point isn't paperwork. It's the disclosure record. If your spouse later challenges the prenup, the schedules are the proof that they knew what they were waiving.

2. Marital property rules

What's "ours" vs. "yours and mine" once the marriage starts? In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin), the default is that anything earned during marriage is jointly owned. In every other state, courts apply equitable distribution. A prenup overrides the default — but only as far as the document is clear about it.

3. Debt allocation

Student loans, credit cards, business debts, mortgage liabilities. A prenup can keep pre-marital debt out of the marital estate and specify which spouse is responsible for which post-marital debts. Especially worth doing when one spouse has significant student debt or a small-business loan.

4. Business interests

If either spouse owns or will own a business, this section is the entire reason for a prenup in many cases. Without a prenup, a business that appreciates during the marriage can be deemed partly marital — and the other spouse can be entitled to a share of the appreciation. The agreement should specify: the business stays separate; appreciation stays separate; the non-owner spouse waives any claim against business assets, regardless of how successful the company becomes.

5. Inheritance handling

Inheritance is separate property by default but loses that status fast through commingling. The prenup should say: inheritance received during marriage remains separate; the receiving spouse can keep it in a separately-titled account; and if it's spent on joint purposes, that's documented as a gift, not a conversion to marital property.

6. Spousal support / alimony

Most states permit prenups to waive, limit, or set spousal support — with two caveats. First, courts will refuse to enforce a waiver that leaves a spouse unable to support themselves. Second, Iowa prohibits support waivers entirely. Third, California permits them only when the waiving spouse had independent counsel.

7. Dispute resolution + choice of law

The prenup should specify how disputes get resolved (mediation, arbitration, or court), which state's law applies, and where any litigation will happen. Choice-of-law clauses are useful but not bulletproof — if you move to a state with different rules, the new state's courts may apply local law regardless. See DeLorean v. DeLorean (NJ 1986) for the textbook example.

What a prenup CAN'T include

Some provisions are unenforceable across every US jurisdiction. Including them doesn't usually invalidate the rest of the agreement, but they're dead weight and they signal careless drafting.

• Child custody. Courts decide at the time of divorce, based on the child's best interests. A prenup can't pre-decide.
• Child support. Same reason. The child's right to support belongs to the child, not the parents.
• Anything illegal. A prenup can't authorize illegal conduct or contract around criminal law.
• Provisions encouraging divorce. Penalties for staying married, bonuses for divorcing — courts reject these as contrary to public policy.
• Lifestyle clauses. Weight, sexual frequency, household chores, social media use. Courts treat these as unenforceable on public-policy grounds. They make the news; they don't survive litigation.
• Religious-upbringing mandates for future children. Same logic as custody — courts won't bind parents in advance.

What makes the difference between enforced and struck down

In rough order of how often courts cite each as a reason to refuse enforcement:

1. Inadequate disclosure (most common). One spouse didn't have a complete picture of the other's finances.
2. Lack of independent counsel. One spouse didn't have their own attorney. Some states require it; all states weight it.
3. Duress / signing under pressure. Especially close to the wedding date.
4. Unconscionability at execution. The agreement was wildly one-sided when signed.
5. Unconscionability at enforcement (some states). Conditions changed so enforcement is now unfair — e.g. a 20-year marriage where one spouse gave up their career.
6. Procedural defects. Not in writing. Not signed. Missing notarization (in states that require it). Missing the New York acknowledgment.

For your specific state's enforceability rules, see the state-by-state guide. To check whether your situation has any of the above flags, take the 60-second prenup quiz.

Before signing — the checklist

1. Each spouse has their own family law attorney, licensed in your state.
2. Both spouses produce complete sworn financial disclosure, with values, statements, and tax returns.
3. The agreement covers all seven categories above.
4. No child custody / support / lifestyle / illegal provisions.
5. Time between final draft and signing is at least 30 days, ideally 90 (and at least 7 in California — required by statute).
6. Each spouse signs voluntarily, in front of witnesses or a notary where required.
7. Each attorney keeps a signed copy.