Is it Too Late to have a Post-marital Agreement?

by Sommer C. Horton

You probably heard someone utter the phrase, “He can’t afford to get a divorce because he didn’t have a prenuptial agreement” or “She can’t afford to get a divorce because she had a bad prenuptial agreement.” What is a prenuptial agreement? A prenuptial agreement, also referred to as premarital agreement, is a document that directs how property will be allocated between spouses on one of two triggering events 1) divorce, or 2) death without a valid will or trust that spells out how assets are to be divided among intended beneficiaries and/or legal heirs.  Premarital agreements teach couples about the financial consequences of marriage and are intended to reduce conflict and expense if there is a divorce in the future. 

In California, upon marriage, unless you and your spouse have entered into a valid premarital agreement - anything earned by the efforts of either spouse is owned 50-50 between them. Moreover, if one spouse passes away without a valid Will or Trust, California law dictates how the decedent’s estate will be distributed.  It does not matter, if the distribution is not what the decedent intended to happen to his estate.  Thus, it is really important to have your estate plans and/or premarital or post-marital agreements in place to ensure that your exact wishes will be carried out in the future.

A “bad pre-nup,” is a document that is poorly drafted and as a result, is subject to being deemed “invalid” and “unenforceable” by a court of law.  A spouse can contest the validity of a premarital and/or post-marital agreement on many grounds, such as (1) one spouse did not enter into the agreement voluntarily, (2) the agreement was unconscionable, (3) one spouse was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other spouse, (4) insufficient opportunity for independent review of the agreement prior to signing, (5) using unenforceable terms in the agreement and/or (6) duress, fraud, mistake, or ambiguity.

A post-marital agreement is an agreement entered into between a husband and wife, after marriage that defines each spouse's respective rights to property.  While premarital and post-marital agreements can accomplish the same goals with regard to asset protection, there are some inherent differences between the two types of agreements.  Upon marriage, spouses owe certain fiduciary duties to one another.  Spouses must abide by these duties.  Thus, post-marital agreements must be carefully drafted.  

To be valid in California, a post-nuptial agreement or post-marital agreement must be in writing, signed by both parties, accompanied by a full disclosure of all assets, income and debt, be free from fraud & duress and entered into freely.  Most importantly, it must have allowed the parties ample opportunity to consider its contents and obtain legal advice before signing.

Approximately three out of four marriages end in divorce these days.  If you want to make sure your assets are properly protected, in case your marriage results in divorce, you should consider executing a premarital agreement or a post-marital agreement.  If you are interested in creating a premarital agreement, post-martial agreement and/or your estate plans, I strongly encourage you to talk with a lawyer who specializes in these areas of the law. 

Sommer Horton is an associate at Neil Dymott. Her areas of practice include estate planning, trust administration and probate. For further information, Ms. Horton can be reached at (951) 303-3930 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it