Prenups for a Second Marriage

What a Premarital Agreement Is Under California Law

Family Code section 1610(a) defines a premarital agreement as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." Section 1613 repeats the timing point: the agreement "becomes effective upon marriage." Until the wedding happens, it has no effect. It comes into force on the day of the marriage.

These rules sit in the Uniform Premarital Agreement Act, which runs through Family Code section 1617. The foundation is Family Code section 1500, which states that "the property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement." Put plainly, California's default rules about community property, meaning property acquired during marriage that generally belongs to both spouses, apply unless the couple agrees otherwise in a valid agreement. The Act also gives "property" a broad meaning. Section 1610(b) covers any interest, "present or future, legal or equitable, vested or contingent," including income and earnings.

A second marriage brings concrete facts to the table. These may include real property owned before the wedding, retirement savings, an existing business, debts, support obligations from a prior case, and children who are not the new spouse's children. A premarital agreement is the tool the Act provides for addressing those facts before the marriage begins.

An agreement signed after the wedding is a different document, a postnuptial agreement. Section 1500 recognizes "other marital property agreement[s]," but the Act discussed on this page is written for agreements made before marriage. A postnup is a separate subject.

If a premarital agreement is ever disputed, the dispute usually arises inside a dissolution (divorce) or legal separation case. In this county, that case is filed in the Superior Court of California, County of San Diego. The division that hears it depends on the ZIP code, under the court's ZIP Code List (ADM-254).

What a Prenup Can Cover: The Family Code § 1612 List

Family Code section 1612(a) lists seven subjects that "parties to a premarital agreement may contract with respect to." Each one is worth reading against the facts of a second marriage.

(1) Property rights. "The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located." In plain terms, the agreement can state who owns what, whether it was owned before the wedding or acquired after it, and wherever it is located. For someone bringing a home or savings into a second marriage, this is the core provision. It can keep those assets separate, and it can also address what happens to assets acquired during the marriage.

(2) Management and control. The agreement can address "the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property." This covers who decides what to do with an asset, such as a rental property or a business interest, during the marriage.

(3) Disposition at the end. "The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event." This item looks ahead. It covers what happens to property if the marriage ends in divorce, if one spouse dies, or if some other stated event occurs. A second marriage may end either way, so this provision often carries a lot of weight.

(4) Wills and trusts. "The making of a will, trust, or other arrangement to carry out the provisions of the agreement." The agreement can commit a spouse to put estate planning in place that carries out its terms. This is the main link between a prenup and planning for children from a prior relationship, and it is discussed further below.

(5) Life insurance. "The ownership rights in and disposition of the death benefit from a life insurance policy." The agreement can address who owns a policy and who receives its proceeds.

(6) Choice of law. "The choice of law governing the construction of the agreement." This means the couple can choose which state's law will be used to interpret the document. It matters when one partner has ties to another state, or when the couple may move.

(7) Other matters. "Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." This catch-all is broad, but it has limits, which the next section covers.

The list does not separately name spousal support, which is money one spouse may be ordered to pay the other after separation. Section 1612(c) shows that support provisions, "including, but not limited to, a waiver of it," can appear in a premarital agreement, and it then places two conditions on them. The provision is not enforceable if the spouse it is used against "was not represented by independent counsel at the time the agreement containing the provision was signed." It is also not enforceable if the provision "is unconscionable at the time of enforcement." Unconscionable means so one-sided that a court will not enforce it. Having a lawyer at signing is not enough by itself. The same subdivision says an otherwise unenforceable support provision does not become enforceable "solely because" the party had independent counsel.

What a Prenup Cannot Do

Family Code section 1612(b) is short and firm: "The right of a child to support may not be adversely affected by a premarital agreement." Two adults cannot agree to reduce or waive a child's support. In a second marriage, this applies to children from a prior relationship as much as to any children the couple may have together. Partners sometimes want to write down what a stepparent will or will not owe. An agreement can address the spouses' own property and obligations, but it cannot cut down a child's right to support.

Custody and visitation are not on the section 1612(a) list. They are decided by the court when a case is actually before it. When custody or visitation is contested, California law requires the court to set those issues for mediation, and in San Diego County that mediation takes place through the court's Family Court Services. The judge decides. A clause written years earlier does not decide the question for the court.

Section 1612(a)(7) allows other matters only if they are "not in violation of public policy or a statute imposing a criminal penalty." An agreement cannot require either spouse to do something illegal. Terms that conflict with public policy fall outside what the Act permits.

Timing also matters for one category in particular. For spousal support, section 1612(c) looks at unconscionability "at the time of enforcement," not only at the date of signing. A support term that seemed balanced when the couple signed may be measured against very different circumstances years later.

The Requirements That Make a California Prenup Enforceable

Under Family Code section 1611, a premarital agreement "shall be in writing and signed by both parties. It is enforceable without consideration." Consideration means something exchanged in return. No payment or trade is needed for the agreement to be valid. An oral promise is not enough.

Family Code section 1615(a) sets out two ways the person challenging the agreement can defeat it. The first is proving "that party did not execute the agreement voluntarily." The second requires proof that the agreement "was unconscionable when it was executed" and that, before signing, all three of the following applied:

• the party "was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party";
• the party "did not voluntarily and expressly waive, in writing, any right to disclosure" beyond what was provided; and
• the party "did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party."

Under section 1615(b), unconscionability is "decided by the court as a matter of law."

Section 1615(c) explains what voluntary means. An agreement is deemed not executed voluntarily unless the court finds, in writing or on the record, several things:

• Independent counsel. The challenging party had independent legal counsel at signing. Alternatively, after being advised to get counsel, the party waived it "in a separate writing." That advisement must come "at least seven calendar days before the final agreement is signed."
• Seven days with the final agreement. For agreements signed on or after January 1, 2020, the party must have had "not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel." Nonsubstantive amendments that do not change the terms are excepted.
• Explanation for an unrepresented party. A party without counsel must have been "fully informed of the terms and basic effect of the agreement" and of the rights being given up, in writing, in a language the party is proficient in. The party must also sign a document confirming that and naming who provided the information.
• No duress, fraud or undue influence, and no lack of capacity. Undue influence means unfair pressure from someone in a position of trust.
• Any other factors the court deems relevant.

Disclosure tends to be where second marriages are most involved. Retirement accounts, real property, business interests and existing support obligations all belong in the financial picture. A thorough exchange of information supports the agreement if its fairness is ever questioned. Under section 1617, any statute of limitations on claims under the agreement is "tolled during the marriage." In other words, the clock does not run while the couple is married, although equitable defenses such as laches (unreasonable delay) and estoppel remain available.

If enforceability is contested later, the question is heard in the Superior Court of California, County of San Diego, in the division assigned to the ZIP code under ADM-254.

Estate Planning and Life Insurance: Why Second Marriages Make These Provisions Matter

For a blended family, the death provisions are often the reason the agreement exists. Section 1612(a)(3) lets the agreement provide for "the disposition of property upon... death," and section 1612(a)(4) lets it provide for "the making of a will, trust, or other arrangement to carry out the provisions of the agreement." Together, they let a couple agree in advance that certain assets will pass to children from a prior relationship, or that a surviving spouse will receive a stated share.

The agreement itself is not a will or a trust. A clause committing a spouse to create a trust for their children is a promise to put that plan in place. The will, trust or other instrument still has to be prepared and signed as its own document. The prenup and the estate plan work as a pair, and a gap between them can leave the promise unfulfilled.

Life insurance is handled by section 1612(a)(5): "The ownership rights in and disposition of the death benefit from a life insurance policy." This matters when a policy already names a former spouse or children as beneficiaries, or when a new spouse is meant to be covered. The agreement can state who is to own the policy and who is to receive the proceeds.

There is one caution. Beneficiary designations on employer-sponsored retirement plans and some life insurance are governed by federal law, and a prenup provision about those assets may not override a conflicting beneficiary designation on file. How a particular plan treats that conflict is a fact-specific question, and an attorney can review the plan and the agreement together.

How the Agreement Is Drafted and Signed in San Diego County

The seven-day rule in section 1615(c)(2) sets the shortest possible schedule. At least seven calendar days must pass between presenting the final agreement and signing it. In practice the process usually takes longer, because drafts go back and forth and each partner's attorney reviews them. When each party has separate counsel, the independent-counsel finding in section 1615(c)(1) is satisfied directly.

Financial disclosure typically takes the form of a schedule from each partner listing assets, debts, income and financial obligations. This is not the preliminary declaration of disclosure used in a divorce case, but it serves a similar purpose, which is making sure each person knows what the other brings.

The agreement is signed before the wedding and takes effect on the date of marriage under section 1613. After the wedding, section 1614 allows it to be amended or revoked "only by a written agreement signed by the parties."

The agreement is not filed with any court when it is signed. It becomes relevant only if a dissolution or legal separation case is later filed. In San Diego County, that case would be heard at one of four courthouses, depending on the ZIP code list (ADM-254):

• Central Division: Central Courthouse, 1100 Union Street, San Diego, CA 92101
• North County Division: North County Regional Center, 325 South Melrose Drive, Vista, CA 92081
• East County Division: East County Regional Center, 250 East Main Street, El Cajon, CA 92020
• South County Division: South County Regional Center, 500 3rd Avenue, Chula Vista, CA 91910

Couples who begin several months before the wedding generally have room for negotiation, full disclosure and the waiting period without the date pressing on them. That breathing room also bears on whether the agreement was signed voluntarily.