Prenuptial Agreement Form

This free prenuptial agreement form is provided for general informational purposes. Before you execute a prenuptial agreement, you should have it reviewed by a lawyer of your choosing in your jurisdiction to ensure that it meets your legal needs, and will be upheld as valid by a court in the jurisdiction where you reside or where you may ultimately separate or divorce.

To best ensure that it will be upheld, each party to a prenuptial agreement should be represented by an independent attorney of that party's own choice, and the agreement should be custom-drafted to their specific circumstances and the law of the jurisdiction in which they intend to marry and reside. In order to reduce the possibility of a later claim of coercion, the prenuptial agreement should be executed at least a month before the wedding date.

Prenuptial Agreement

This premarital made on date, by and between Fiancé(e) #1, of County, State, and Fiancé(e) #2, of County, State.

The parties to this agreement intend to marry on Date. In anticipation of their marriage, the parties want to determine through this prenuptial agreement the rights and claims of each party that will accrue in the estate of the other as a result of their marriage.

The parties enter into this agreement with the intention of becoming happily married, but they acknowledge that in the event of the subsequent dissolution of their marriage their peace of mind will be preserved by knowing that this agreement governs their rights to their respective separate estates and to any obligation of support. The parties believe that the provisions of this agreement are fair and equitable for themselves and for the other party.

The parties have each acquired assets separately of each other, and without the assistance of the other. The parties want to define their respective rights to the property of the other in the event of the dissolution of their marriage. The parties intend for this agreement to apply to any marital dissolution proceedings in any foreign or domestic jurisdiction. The parties accept the provisions set forth this agreement as full satisfaction of all rights and claims that they would otherwise accrue through marriage in the property and estate of the other party.

Fiancé(e) #1 resides at Address, and is Age years old. Fiancé(e) #2 resides at Address, and is Age years old. Both parties are aware of any prior marriage(s) and divorce(s) of the other party. Both parties are in good health.

[Include if Appropriate]

Fiancé(e) #1 was previously married, with a final judgment of divorce having become effective on Date. As a result of a prior marriage or relationship, Fiancé(e) #1 has Number children. Their names and ages are Names and Ages.

Fiancé(e) #2 was previously married, with a final judgment of divorce having become effective on Date. As a result of a prior marriage or relationship,Fiancé(e) #2 has Number children. Their names and ages are Names and Ages.

The parties understand that except as specifically provided to the contrary within this agreement, by entering into this agreement, each party relinquishes all rights to any claim against the separate estate of the other spouse upon that spouse's death.

THEREFORE, in consideration of the marriage and of the mutual promises and waivers contained in this agreement, the parties agree to the following:

Conditional Agreement

1. This agreement will be deemed effective on the day of the marriage between the parties. The parties’ marriage is deemed to be a condition subsequent to the validity of this agreement.

Mutual Consideration

2. The consideration for this agreement consists of the mutual promises of the parties as described in this agreement and the marriage that is about to be solemnized. If the marriage does not take place, this agreement shall be null and void and without force or effect.

Disclosure of Assets

3. Each party acknowledges that the other party has provided full disclosure of that party's assets, resources, income and other means, including but not limited to the financial information disclosed on Exhibits A and B to this agreement, that are attached and hereby incorporated into this agreement by reference.

Each party acknowledges that there is a likelihood that the assets of the other party may appreciate substantially following the date of their marriage.

Control and Management of Property

4. During the lifetime of each party to this agreement, that party shall retain sole ownership, control, and enjoyment of all real, personal, intangible, or mixed property that the party now owns or later acquires, free and clear of any claim by the other party.

5. Notwithstanding any provision to the contrary within this agreement, either party may make gifts or other conveyances to each other or to third parties at any time.

Jointly Owned Property

6. Nothing in this agreement prohibits the parties from at any time creating joint interests in real estate as tenants by the entirety or in personal property as joint tenants with rights of survivorship. If a joint interest is created, in the event of divorce, that joint property shall be divided equally between the parties. At the death of the first party, any property held by the parties as tenants by the entireties or joint tenants with rights of survivorship will pass to the surviving party.

Inheritance

7. Each party shall own and possess, and have power to devise, bequeath, and transfer at that party chooses, all real, personal, intangible, or mixed property that the party owns at the time of their marriage or later acquires.

8. In the event that a party to this agreement dies without having made a will or other provision for the distribution of the party's estate and assets, the surviving party will receive no share or interest in the decedent party’s estate as surviving spouse or heir-in-law, except as expressly provided in this agreement. In all other respects the decedent partner's estate will be distributed in accord with the laws of the State of State governing the distribution of estates if the decedent dies testate, any inter vivos trust, or the laws of intestate succession.

9. Each party agrees that, if one party predeceases the other, the surviving party shall be entitled to one-third of the estate of the predeceased party. Each party agrees that according to the terms of this agreement, whether by will, trust or other testamentary document, each party will leave to the other party one-third of the estate of that party. In the event that a party fails to do so, it is the intent of the parties that this agreement be treated as a binding contract to make testamentary bequests as contemplated by and described in this agreement. Each party agrees that the trustee of the other party's estate, or trustee of the other party's inter vivos trust, shall have sole and complete discretion to select property that will be given to a surviving spouse in order to satisfy this provision.

[Optional Provision:]

After the number year of marriage, upon divorce or death of the other party, each party shall have the right to distribution of percentage percent of the property, both real and personal, of the other party. Each party has the right to make that distribution by trust, in which case the trustee of a deceased spouse shall have sole discretion as to how the property held in trust is to be distributed, whether by payment of cash or by offset with other property.

10. Other than the one-third share in the estate of a predeceased spouse, each party to this agreement waives and releases all rights and claims that the party may acquire in the estate, property or property interest of the other party. This waiver includes but is not limited to:

  • All powers of appointment;
  • Any property held in trust;
  • All rights of intestacy;
  • All rights to dower or curtesy;
  • All rights of election, including the right to elect against the decedent partner's will;
  • All rights to a spouse’s allowance;
  • All rights to a homestead or a homestead allowance;
  • All rights to an exempt property allowance;
  • All rights to maintenance;
  • All rights to the use of a dwelling house,

This waiver shall apply to all rights and claims arising under common law, and the present and future laws of the State of State and any other jurisdiction.

11. Notwithstanding any provision to the contrary within this agreement, either party may give, devise, or bequeath any of their property to the survivor.

12. Notwithstanding any other provisions of this agreement, if the marriage of the parties ends in a judgment of divorce or annulment, or if an order for separate maintenance is entered,, any further testamentary rights or obligations of either party shall cease on the effective date of the judgment of divorce, annulment, or order for separate maintenance.

Divorce or Separate Maintenance

13. If the marriage of the parties ends because of an annulment, divorce, or action for separate maintenance, then the parties agree that the property acquired during the marriage shall be divided as follows, in full satisfaction of all rights or claims of spousal support, alimony, property division, or any other rights or claims that result from the common law or statutes governing marriage or divorce in the State of State or any other jurisdiction, and that all such rights or claims are waived and released by this Agreement:

All property acquired after the marriage shall be divided between the parties with Fiancé(e) #1 receiving fifty percent of the property and Fiancé(e) #2 receiving fifty percent of the property.

[Choose or Modify One Paragraph}

Any real property acquired by the parties during their marriage shall be sold or refinanced. After deduction of the expenses of the sale or transfer and capital gain taxes that are owed, the net proceeds shall be divided equally between the parties.

Any real property acquired by the parties during their marriage shall be sold or refinanced. After deduction of the expenses of the sale or transfer and capital gain taxes that are owed, the net proceeds shall be divided in ratios equal to the amount of the percentage of contribution that each party has made towards the down payment, monthly payment, payment of interest, taxes, insurance, special assignments, and upkeep and maintenance.

14. Notwithstanding the above, the following property acquired after the marriage shall remain the sole and separate property of the party who acquires the property or who is named as an owner of the property:

a. Any increase in the value of any property, rents, profits, or dividends arising from property owned by either party at the time of the marriage shall remain the sole and separate property of that party.

b. Any property acquired in either party’s individual capacity or name during the marriage, including but not limited to any contributions to pension plans and retirement savings accounts, shall remain the sole and separate property of the party named on the account or the party who acquired the property in that party's individual capacity or name.

[Optional Provision]

c. Any and all earnings, accumulations, acquired property, and derived income resulting from the personal service, skill, effort, and work of one party shall remain the separate property of that party. Each party understands that, but for this agreement, the earnings and accumulations that result from the personal service, skill, effort, and work of one party during their marriage could be subject to the legal or equitable rights of the other party.

The parties understand that by this agreement, the parties’ earnings and income during their marriage are made the separate property of the party to whom the earnings and accumulations are attributable. Each party agrees to maintain separate checking and savings accounts or similar accounts, and to hold their separate earnings and accumulations in those separate accounts. If the parties maintain joint accounts, each party shall be entitled to one-half of the value of the joint account at any given time without regard to the amount contributed by either party.

15. At any time during or after the termination of the marital relationship, each party shall execute and deliver any deeds or other instruments necessary to transfer any right or title in property to the other party in which an interest may be acquired by virtue of the property laws of the other state.

Relinquishment of Claims

16. Each party agrees as follows:

a. Each party shall, without compensation, join as grantor in all conveyances of separate property made by the other party or by his or her heirs, devisees, or personal representatives and will relinquish all claim to this conveyed property, including but not limited to any dower or homestead rights.

b. Upon the request of the other party, each party shall take all steps to execute, acknowledge, and deliver to the other party all further documents or instruments necessary or expedient to effect the purpose and intent of this agreement.

c. As soon as practicable after the marriage, each party shall deliver to the other a consent in writing to the other naming someone other than one of the parties as a beneficiary on that party's IRS qualified retirement plan pursuant to IRC 417. The signed and notarized waiver shall be filed with the qualified plan’s administrator to effect a waiver of each spouse’s statutory right to be named as beneficiary of the other.

d. Each party irrevocably appoints the other as their lawful attorney-in-fact to sign, execute, acknowledge, and deliver in their name all deeds, liens, mortgages, pledges, releases, or other instruments conveying and waiving all liens on or interest in any inchoate right or dower, curtesy, or homestead in any property owned by the other party, to the extent necessary to effect the terms of this agreement.

e. Each party grants to the other party as attorney-in-fact the full power and authority to perform every act necessary to fulfill their obligations under this agreement as fully as either party could do individually. By this agreement, each party ratifies all acts that the other might take under this paragraph as attorney-in-fact.

Acknowledgments

17. Each party acknowledges all of the following:

a. Each party has had a full opportunity to examine this agreement and to confer with the party's own separate legal counsel about the agreement and its terms, has had all rights and the nature of all waivers fully explained, and is satisfied with that legal representation and explanation.

[Choose one paragraph]

b. For purposes of this agreement, Fiancé(e) #1 has retained and consulted with lawyer's name, as independent legal counsel, and Fiancé(e) #2 has retained and consulted with name of counsel, as independent legal counsel. Neither party has any reason to believe that the other party did not fully understand the terms and effect of this agreement or that the other party did not freely and voluntarily execute this agreement.

b. For purposes of this agreement, Fiancé(e) #1 has not retained and consulted with any independent legal counsel, having waived the right to do so, and Fiancé(e) #2 has not retained and consulted with any independent legal counsel, having waived the right to do so. Neither party has any reason to believe that the other party did not fully understand the terms and effect of this agreement or that the other party did not freely and voluntarily execute this agreement.

c. Each party has reviewed, considered and verified all the facts, conditions, and circumstances that are likely to influence that party's judgment regarding this agreement including, but not limited to, all financial information included in exhibits to this agreement and incorporated into this agreement by reference.

d. Each party fully understands and freely and voluntarily consents to all the provisions in this agreement, and that by executing this agreement that party will be entitled to a substantially lesser portion of the other party’s property or estate than if this agreement were not executed. Each party is satisfied with this substantially lesser portion because that party's marriage to the other party is motivated by love and affection for the other party and not by any desire to secure the full share of the property or estate of the other party to which a claim might be made in the absence of this agreement.

e. Each party has entered into this agreement freely and voluntarily after taking into account the advice of his or her own legal counsel.

Legal Representation

18. Each party bears that party's own costs and expenses incurred in connection with this agreement, including but not limited expenses incurred in the negotiation, preparation, and execution of this agreement.

19. If either party retains counsel for the purpose of enforcing or preventing the breach of a provision of this agreement, including but not limited to instituting a legal action or a proceeding to enforce or seek specific performance of a provision of this agreement, to seek a declaration of the party’s rights or obligations under this agreement, or any other legal or judicial remedy relating to this agreement, the prevailing party shall be entitled to be reimbursed by the losing party for all costs and expenses incurred as a result, including but not limited to reasonable attorney fees and costs incurred by the prevailing party in response to any legal action or proceedings.

Non-Waiver

20. The failure of either party to insist on strict performance of any provision of this agreement will not be construed as a waiver of any subsequent default in the performance of this provision, nor will it affect either party’s right to claim strict performance of the other portions of this agreement.

Heirs, Representatives and Assigns

21. This agreement will inure to the benefit of all and will be binding on the parties and their respective heirs, personal representatives, and assigns.

22. This agreement is personal to each party, and neither party may assign or delegate any rights or obligations under this agreement.

Entire Understanding of the Parties

23. This agreement contains the entire understanding of the parties. There are no representations, warranties, promises, covenants, or undertakings, oral or otherwise, other than those expressly set forth.

Governing Law

24. This agreement is made and executed in the state of State, and this agreement shall be construed under the laws of the state of State. If, at any time during the existence of the parties marriage, the parties become residents of a state in which a married couple acquires any property rights that are different from the property interests of a married couple under the laws of State, including but not limited to community property interests, the respective property interests and other rights or claims of the parties shall remain the same under the provisions of this agreement and shall be construed under State law.

Severability

25. If any provision of this agreement is determined to be unenforceable by a court of competent jurisdiction, all other provisions shall be deemed separate and severable from all other provisions of this agreement, and all the remaining provisions of this agreement will continue in full force and effect.

Termination of This Agreement

26. The parties may terminate this agreement only by a written document that is dated, and signed by both parties in the presence of at least two witnesses.

[Optional Provision]

#. The terms of this agreement will automatically terminate on the number anniversary of the parties’ marriage, unless both parties reaffirm the specific terms of this agreement in writing prior to that time.

[Optional Provision]

#. On the parties’ number wedding anniversary, the terms and conditions set forth in this agreement shall become null and void.

27. This agreement will automatically terminate upon the deaths of both parties, unless it is revoked sooner in accord with the specific terms of this agreement.

Execution

28. This agreement may be executed in multiple counterparts, each of which will be deemed a duplicate original, but all of which together constitute one and the same instrument, as long as it is signed by both parties.

The parties have executed and delivered this agreement as of the date stated on the first page of this agreement.

Dated: Date

Signature
Fiancé(e) #1's Typed Name

Dated: Date

Signature
Fiancé(e) #2's Typed Name

Signed in the presence of:

Signature
Witness's Typed Name
Witness as to the signature(s) of Party or Parties

Signature
Witness's Typed Name
Witness as to the signature(s) of Party or Parties

Notarization

State of State
County of County

On Date, Fiancé(e) #1 and Fiancé(e) #2, whom I know to be the persons described in and who executed the above prenuptial agreement, appeared before me and personally and acknowledged that they executed this agreement as their own free act and deed.

Signature
Notary Public's Typed Name
Notary public, State of State, County of County.
My commission expires Date.

Exhibit A

Fiancé(e) #1's Assets and Liabilities

Assets

List All Assets
 
 

Liabilities

List All Liabilities
 
 

Liabilities

Exhibit B

Fiancé(e) #2's Assets and Liabilities

Assets

List All Assets
 
 

Liabilities

List All Liabilities
 
 
Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Aug 7, 2016.