Pre-Nups in California: Who Needs One, and How Do They Work?

If you got engaged recently, merging your financial assets as a couple may be the last thing on your mind right now.

But perhaps a frank chat about money should eventually move up on your wedding “to-do” list. And this conversation might well involve the word “pre-nup.”

While pre-nuptial contracts have long been associated with the ultra-wealthy, or with marriages already headed for trouble, these documents are now being increasingly embraced by couples of all ages — and financial situations — as a form of basic planning.

A recent New Yorker feature found that more than 40% of engaged millennials say they’ve signed a prenup — and that couples are using them to protect everything from intellectual property to collector items, like Labubus.

Apps have also made these legal contracts easier to access. And a growing chorus of lawyers, financial advisers and people who’ve been through ugly divorces are making the case that a pre-nup isn’t a sign of distrust, but rather an indication that you’ve done your homework.

But pre-nups can also be complicated, misunderstood and (if done wrong) downright unenforceable. With these complexities in mind, KQED asked the experts: what does a pre-nup actually do, who needs one, and what should you know before you sign?

Keep reading for everything you need to know about pre-nups in California.

• Jump straight to: Why should I get a pre-nup if we don’t have a lot of assets yet?

How does marital property work in California if I don’t have a pre-nup?

If you were married in California, you’ve actually already made a legal agreement about your assets.

As family law attorney Juliana Yanez told KQED on a recent Forum show: “The state of California, in essence, has a premarital agreement for you. It’s just that most folks who are getting married don’t know what it says.”

If you didn’t sign a pre-nuptial agreement, and you later file for a divorce, you’re likely to have your assets divided according to the state’s legal default.

Decades ago, California was the first state to legalize no-fault divorce, meaning that courts could no longer consider marital misconduct when granting a divorce or deciding how property would be divided — a process that previously favored the wronged party in a divorce where “fault” could be attributed.

Under current state law, Loyola law professor Kaiponanea Matsumura said, “once you marry, most of the assets that are earned by the spouses during marriage are going to be treated as ‘community property.’”

“So everybody has an immediate 50% interest in the community property,” Matsumura said, and “every dollar that you earn is 50% owned by your spouse, and vice versa.” The exception to this: Property you owned before the marriage, or received as a gift or inheritance, stays yours.

The catch is that the default rules don’t always feel equitable. Matsumura points to one common scenario: if you supported your spouse through school, and then divorced right as they started earning an income, that money wouldn’t count as community property under California law.

And if you’re counting on spousal support to soften the blow, Matsumura cautions that the law is more limited than many people expect. “What the law is doing is splitting the marital property 50-50, most likely, and offering a clean break,” he said.

What can a pre-nup actually cover?

Quite a lot. At its core, a pre-nup lets you decide how to divide property and whether to waive or limit spousal support in a specific scenario. But it also goes well beyond that.

“A pre-nup sets aside those rights that your state has afforded you because of marriage and allows you to craft whatever you want,” Massachusetts family law attorney Deborah Danger said.

These contracts can be used to protect a business, set boundaries around a retirement account or inheritance, and even to address debt. The latter is especially important for people getting married in California, given, as Matsumura said, debt is also divisible as “communal property” — meaning California couples are likely entitled to half of their spouse’s debts as well as their assets.

Younger couples are also pushing into new territory with their marital contracts. New Yorker staff writer Jennifer Wilson found that Millennial and Gen Z couples are embracing pre-nuptial agreements as a tool for navigating tricky modern dilemmas.

In her story, Wilson said how apps like HelloPrenup offer legal templates with clauses penalizing social media disparagement, or stipulating how a couple’s embryos might be divided or stored in the event of a divorce.

“It’s not just that more Millennials and Gen Z [couples] are getting pre-nups,” Wilson said. “They’re also trying to remake the pre-nup.”

Are there things a pre-nup can’t do?

Yes — and the clearest limit involves children.

You can’t use a pre-nup to predetermine child custody or support. Courts have to award parental custody “based on the best interests of the child, regardless of what the parents say about it in a pre-nup,” Matsumura said.

Courts also won’t approve terms so lopsided that one spouse is left destitute. Danger said that a judge will intervene if the terms leave someone unable to financially support themselves.

Beyond that, Matsumura drew a clear line between clauses governing marital finances and spousal behavior. “Infidelity clauses” are generally unenforceable in California, and anything governing sexual conduct is also off the table.

Pet custody is a newer gray area. Most states treat pets as property, meaning a judge would simply award the animal to one person, like a car. But California recently passed a law allowing couples to agree on shared companionship arrangements for pets: something that looks a lot like a custody schedule.

“You might drop off the dog every two weeks at a pet store parking lot, or they agree to pay for certain types of medical care for the pet,” Matsumura said. This is a small but telling sign of how the law is slowly catching up to the way couples actually think about their lives, he said.

My partner and I don’t have a lot of assets. Do we still need a pre-nup?

Probably more than you think. Even couples with similar financial situations at the time of marriage can find themselves with imbalanced assets later in life, Matsumura said.

For example, if you decide to step back from your career to provide child or parental care, “you might find that you take a hit and you’ll never fully recover,” Matsumura said. While this can be especially true for women, he said that married people of all genders may have to make tough decisions about their participation in the workforce and how it’ll affect their earning power.

Juliana Yanez pointed to “equalization clauses,” provisions that award a stay-at-home spouse additional assets or support for every year they’re out of the workforce, as a valuable tool. This could look like a person receiving 25% of their spouse’s income after 5 years of marriage, and that percentage rising to 50% after 10 years.

Yanez said building these kinds of rises gradually, noting that they’re generally more enforceable if the amount of financial support vests over time, depending on how long you’ve been married.

The New Yorker’s Wilson found that many young couples are also thinking about assets they hope to own someday — and how they’ll divide them. Among her interviewees were aspiring screenwriters who hadn’t sold a script yet, but still wanted their intellectual property protected just in case. “We’re not millionaires now,” one told her, “but we might be one day.”

Another way to think about all this, Danger said, is as peace of mind. Knowing your separate property is accounted for, she said, frees you to invest fully in building a life together — without the quiet anxiety of wondering what you’d lose if things went wrong.

What’s the right time to bring up a pre-nup, and how do I start the conversation?

Family law attorney Yanez said discussing a prenup at least six months before the wedding, noting that California law already requires a seven-day waiting period before you can sign.

Rushing this process also creates legal risk, Yanez said: not only do financial disclosures take time, but a pre-nup that feels coerced is also much harder to enforce.

As for how to start, Danger suggests thinking of it not as planning for divorce but as planning together while you still feel generous toward each other.

“If you find talking about money unromantic, then you’re going to find marriage unromantic,” Wilson said. Since money is the number one thing couples fight about, she said, having the conversation early may actually help the marriage last longer.

If a formal conversation feels like too much of a leap, Wilson suggested taking the pressure off with a card game called Fight Night, designed to help couples explore where they’re aligned — and where they’re not — before ever sitting down with a lawyer.

I’m already married. Can I still get a similar kind of protection?

Yes, you can get a postnuptial agreement.

Once you’re married, Matsumura said, spouses owe each other “fiduciary duties.” This means you and your spouse are obligated to act in each other’s best financial interests, which can complicate things legally.

But with independent legal counsel — one lawyer for each of you, even though you’re married — and genuinely fair terms, a post-nup has a good chance of holding up in court.

Danger points out another option if you already have a pre-nup in place: amend it as your circumstances change. Consider setting regular check-in dates, timed with your anniversary or another memorable milestone, to reevaluate this document as a couple.

Think of this as a tool in your marital emergency kit, Danger said: “You don’t have to turn on your lamp, but if it gets dark, it’d be good to have some light.”

My partner and I aren’t getting married, but we live together. Can we still make a legal agreement?

A landmark California case called Marvin v. Marvin established that yes, unmarried pairs living together can enter into legally binding agreements about property and financial support — even if they are not in a romantic relationship.

But as law professor Matsumura said on Forum: “If you actually go to court to litigate [a case like this], you might be disappointed.”

I’m in a non-monogamous or polyamorous relationship. Can I get a pre-nup with multiple partners?

Since marriage in the United States is legally limited to two people, the default assumption of “communal property” isn’t available to all partners in a polyamorous relationship.

“We’re not talking about pre-nups at that point, we’re just talking about contracts,” Matsumura said. In theory, he said, partners should be able to contract over “co-ownership of property, payment obligations, or how they’re going to split the surplus that their household generates.”

The catch is: courts tend to be skeptical of these agreements and may resist enforcing them in practice.

For those who want more robust protection, some U.S. law firms now specialize in building marriage-like protections for polyamorous partners through a combination of contracts and estate planning tools.

This matters especially if two of the three — or more — partners are legally married already. Without a separate contract, a third partner could be left with nothing.

For poly partnerships, Danger said that every person in the relationship contracts their own independent attorney. This will help to ensure fairness and help your documents hold up under scrutiny in court.

Can I just use an online pre-nup app instead of hiring a lawyer?

Apps and services like HelloPrenup, Weenup, and Neptune have made pre-nups feel more accessible. And for many couples, that’s a good thing.

As a starting point for organizing your thoughts, these tools can be useful. Wilson observed that these apps “feel seamless” with our digital lives and some, like Neptune, even use AI to match couples with an appropriate lawyer based on their specific concerns.

But all of the legal experts KQED spoke with were clear: an app alone is not enough.

As Yanez explains, you can’t make an enforceable contract if you don’t each have your own legal counsel. That’s not a technicality: it’s a hard legal requirement.

My child is getting married, and I want them to get a pre-nup. What can I do?

If you’re anxious about your child’s impending nuptials, you’re not alone. Wilson said that parents are often the ones pushing hardest for pre-nups, particularly as Baby Boomers begin transferring significant wealth to their children and want to make sure it stays in the family.

But according to attorney Danger, you can suggest it, you can even offer to pay for it — but you can’t force it. Trying to build conditions into your estate plan, like threatening to disinherit a child who marries without a pre-nup, is unlikely to hold up in court.

If a pre-nup is off the table, attorney Yanez recommended instead focusing on financial education. Framing a pre-nuptial agreement as “a financial planning tool” may be a more persuasive approach when broaching the subject with your child and their soon-to-be spouse.