Prenup vs. Postnup: What’s the Difference?

It's more than just whether you sign one before or after your wedding

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Updated on December 13, 2022

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Couple signing paperwork witnessed by a third person — Photo:
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When we find that special person we hope to spend the rest of our lives with, it seems unromantic to consider how we would protect and divide our assets in the event of divorce. However, practically speaking, divorce is quite common.

Having a marital agreement between spouses, such as a prenuptial or postnuptial agreement, could save you a lot of heartache if you and your love decide to split up. On the bright side, the discussions leading up to the execution of a marital agreement could create a healthy and supportive base for a couple to successfully manage their intertwined finances.

Key Takeaways

Marital agreements can be made prenuptial (before marriage) or postnuptial (during marriage).
Prenuptial and postnuptial agreements allow couples to define whether assets are “separate” or “marital” and how these assets would be divided upon divorce.
Such agreements can provide guidelines for financial maintenance and support of the spouses; typically, they won’t include provisions about children in the marriage.
Prenuptial and postnuptial agreements may set out or limit what assets a surviving spouse may be entitled to inherit after the death of their spouse.
Prenuptial and postnuptial agreements are highly scrutinized by courts, so they must be relatively fair and not against public policy to be enforceable.

What’s the Difference Between Prenups and Postnups?

Prenuptial and postnuptial agreements are contracts between a married couple that set the terms for separation. A prenuptial agreement is executed prior to the marriage; a postnuptial agreement is executed after the parties are already married and while they still intend to remain married.

Both prenuptial and postnuptial agreements can accomplish the most common objectives sought in marital agreements, including:

Setting out the separation of assets and debts (whether “marital” or “separate”), and delegating financial rights and responsibilities
Requiring the parties to make a testamentary disposition for the other spouse in their Last Will and Testament (or conversely, requiring the parties to waive their default right to inherit from a predeceased spouse)
Setting out the amount and duration of maintenance (aka alimony)

Note

While all marital agreements are subject to scrutiny by courts, postnuptial agreements tend to be scrutinized at an even higher level.

Once you are married, there is already some entitlement to marital property if the parties divorce. In addition, the legal relationship spouses share creates an actual legal duty owed to each other. For this reason, the law seeks to protect an unassuming spouse from giving their property away (or having it taken) by fraud, duress, or undue influence, and from agreements that may be grossly unfair or against public policy.

Prenuptial Agreement	Postnuptial Agreement
Negotiated and executed before the marriage	Negotiated and executed after the parties are already married and with the intention to remain married
Scrutinized at a lesser level because there was no legal or confidential relationship between the parties before marriage when the agreement was made	Scrutinized at a higher level because of the legal and confidential relationship created between the couple by marriage
Is recognized in every state	Some states, such as Ohio, do not recognize postnuptial agreements

What’s Covered

Like any other contract, the terms of a marital agreement are up for negotiation by the parties. Typically, marital agreements will define what assets and debts are “separate,” which determines how the assets and debts are divided upon divorce. Assets one has before the marriage can be defined and kept separate, and appreciation of these assets during the marriage can also be defined as “separate” property, despite any contribution from the other spouse during the marriage.

Additionally, the parties can set out how any marital or separate assets would be distributed in a way that they each accept. For example, one spouse can keep the marital residence in exchange for the other not having to share their retirement assets.

Marital agreements often speak to spousal maintenance, more commonly known as alimony. Prenup and postnup agreements allow the parties to make provisions for future spousal maintenance before the idea of divorce arises, including the amount to be paid and for how long the supported spouse can collect maintenance.

Marital agreements also may set out the rights and responsibilities of each of the spouses—particularly with respect to financial obligations—during and after the dissolution of the marriage. They may require that all marital disputes be solved by mediation or arbitration, instead of in the court system.

Marital agreements are also an important estate planning tool. In most jurisdictions, you cannot disinherit your spouse. However, a prenuptial agreement can create an enforceable contract between spouses that a surviving spouse may not petition the court for their share of your estate after you die.

This is useful in a few different scenarios, with the first being if there are children from a prior marriage. A spouse may want to preserve their estate for their children, while making other provisions for their spouse (e.g., by making lifetime gifts to their spouse or naming their spouse as the beneficiary of some other testamentary substitute, such as a pay-on-death account).

The agreement may also end a spouse’s right to any portion of the estate of the spouse who dies first if the couple has separated but does not yet have a final divorce judgment. Under normal circumstances, a surviving spouse may seek their share of the estate at any point prior to final divorce judgment, even if the parties are in the middle of divorce proceedings.

Imagine a situation in which you and your spouse have separated, and while your divorce proceedings are pending, you die unexpectedly. In this scenario, no matter the reason for the divorce, your surviving spouse would be entitled to a portion of your estate even if your will expressly disinherits them. A marital agreement can expressly agree that this right is removed as soon as the parties separate with the intention of divorce. Alternatively, the marital agreement can also require that a certain testamentary disposition be made to the surviving spouse (or ex-spouse).

It is important to review your last will and testament periodically and make sure it reflects your most current wishes. Despite what your marital agreement says about testamentary rights and dispositions, make sure your will is up-to-date.

Note

Generally, a will and marital agreement need to be read together. Just because you contractually agree that you may disinherit your spouse, that does not mean you must disinherit your spouse.

Time

The preparation of a prenuptial agreement can take weeks to months to complete. If you are planning to have a prenup drafted, you should contact an attorney at least three months prior to your wedding date. The parties need to provide the information to their attorney(s), and in nearly all states they must make some level of financial disclosure to each other as part of the agreement.

Compiling this information can be time-consuming for some, especially when they are in the throes of planning a wedding. Once the agreement is drafted, there often will be a period of back-and-forth negotiation.

A postnuptial agreement may take even longer to hash out because in addition to the financial disclosure and negotiations, if the couple is already married, it may be harder for them to agree on how to separate their assets in the event of divorce.

Cost

The cost of a prenup or postnup will often vary based on where the couple lives and the amounts and types of assets held by the couple. It also will depend on the amount of time needed for negotiation. Attorneys often charge a flat fee that includes the initial consultation, the drafting of the agreement, and several hours of revisions, communications, and negotiations. Additional time needed may be billed hourly at the attorney’s hourly rate.

Like any other legal document, more-affordable options may be found by using online websites and forms; however, trying to save a few hundred dollars could cost you tens or hundreds of thousands in the future if your agreement is deemed unenforceable. For this reason, retaining an attorney experienced in the area of marital agreements is a smart idea.

Durability

While both prenuptial and postnuptial agreements that are validly executed are presumed to be enforceable, there are factors that will cause a court to look at both with more scrutiny. Particularly, courts are looking for the existence of fraud, duress, undue influence, or if the agreement is significantly unfair or inequitable toward one spouse.

Note

If you want to give your agreement the best chance of being enforceable in your state, it is best that each party be represented by their own attorney in the negotiations.

Special Considerations

There are certain assets that are typically treated as separate assets, regardless of whether you have a marital agreement, including:

Real or personal property you obtained prior to the marriage
Inheritances
Most personal injury lawsuit settlement proceeds
Property acquired during the marriage in exchange for your separate property
Increase in value to your separate property, except to the extent that it was the result of the contributions or efforts of your spouse
Debts incurred prior to marriage

Having a marital agreement that specifically touches on the assets listed above, though, will remove any ambiguity about whether an asset should be treated as separate property.

Which Is Right for You?

A prenuptial agreement may be right for you if you are planning to marry and already have significant assets. It also may be suitable if you have the expectation that your separate assets may appreciate; for example, a piece of real property, a growing business, a degree in a profession that may enable you to earn a lot of money in the future. Furthermore, if you have children from a previous relationship for whom you wish to provide, hashing out this legal agreement before you get married is a wise idea.

A postnuptial agreement may be right for you if you are already married and either any of the circumstances above existed at the time of the wedding, or the circumstances developed after you were married. However, be aware that it will likely be harder to enforce a postnuptial agreement with respect to assets that grew and appreciated during the marriage.

How assets and debts are treated upon divorce also will depend on whether you live in a “community property” state. Consult an attorney in your area to see if you live in such a state and how it may change the way your prenuptial or postnuptial agreement should be drafted.

The Bottom Line

Both prenuptial and postnuptial agreements, while generally enforceable, will be subject to scrutiny by the court if challenged. Because of the confidential and legal relationship created between spouses upon marriage, however, postnuptial agreements tend to be examined even more. For that reason, if you have the choice about whether you should prepare your marital agreement prenuptial or postnuptial, it often makes more sense to opt for the agreement that’s sealed before the wedding, in contemplation of marriage.

Frequently Asked Questions (FAQs)

Is a postnup as good as a prenup?

A postnup can be as good as a prenup if all formalities required are followed—most specifically a full financial disclosure of both parties—and if both parties are independently represented by their own attorneys. However, a postnuptial agreement always will be scrutinized more, so if the parties are not yet married, it is in their best interest to enter their agreement prior to marriage. Also be certain that a postnuptial agreement is permissible in your state.

Is a postnuptial agreement a good idea?

A postnuptial agreement is a good idea if a married couple wishes to identify their separate assets and set out other financial rights and responsibilities. A postnuptial agreement cannot be created by a couple already contemplating divorce, so do not consider this option if you are anticipating divorce.

What makes a prenup null and void?

A marital agreement, including a prenuptial agreement, will be null and void if there was fraud, or if at the time of execution, one of the parties was under duress or undue influence. Additionally, certain formalities must be met with respect to the execution. Finally, if the agreement is unfair or inequitable, it may not pass scrutiny. Both parties should be represented by their own, separate attorney to prevent a court from looking at the agreement under a microscope.

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