A prenuptial agreement in California is a contract signed by two people before they marry that decides how property will be characterized during the marriage, how it will be divided if the marriage ends, and what each spouse will receive at death. California governs these agreements under its version of the Uniform Premarital Agreement Act, Family Code §§ 1600–1617, but it has added procedural requirements found in no uniform act, including two separate seven-day rules and special protections for spousal support waivers. As a California prenuptial agreement attorney, Michael Holmes drafts and reviews premarital agreements with those requirements built into the timeline from the first meeting.
The scope of the practice matters here. In California, Holmes Law’s family law work is limited to marital agreements, meaning prenuptial and postnuptial agreements. Holmes Law does not handle California divorce, custody, child support, spousal support or property division litigation; Idaho is the only state where the practice offers full-service family law. Holmes Law is a remote practice with no physical office. This page goes deeper than the broader California marital agreements page, and a companion page covers California postnuptial agreements.
Why Couples Sign Prenuptial Agreements in California
California is a community property state. Unless the spouses agree otherwise, property acquired by either spouse during marriage while domiciled in California is community property under Family Code § 760, and on dissolution the community estate is generally divided equally. Earnings during the marriage are community property, and so is the portion of a business or retirement account attributable to effort or contributions during the marriage. A prenuptial agreement lets a couple replace or adjust those default rules. Common reasons include:
- one or both partners own a business, professional practice or equity compensation and want its growth to remain separate property;
- one partner expects a significant inheritance or already holds family property;
- one or both have children from a prior relationship and want to protect their inheritance;
- the couple wants to decide in advance whether earnings during the marriage will be community or separate;
- one partner carries significant debt;
- the couple wants predictability and a clear record of what each brought into the marriage.
The California Premarital Agreement Act
The Act, Family Code §§ 1600–1617, applies to agreements made in contemplation of marriage that take effect on marriage. A premarital agreement must be in writing and signed by both parties (§ 1611), and it becomes effective upon marriage (§ 1613). After the wedding, it can be amended or revoked only by a written agreement signed by both spouses (§ 1614).
Under § 1612(a), the parties may contract about:
- their rights in any property of either or both, whenever and wherever acquired;
- the right to buy, sell, use, transfer, manage and control property;
- the disposition of property on separation, dissolution, death or any other event;
- making a will, trust or other arrangement to carry out the agreement;
- ownership rights in and disposition of the death benefit from a life insurance policy;
- the choice of law governing the agreement;
- any other matter, including personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Two limits stand out. Under § 1612(b), the right of a child to support may not be adversely affected by a premarital agreement. And under § 1612(c), California imposes special rules for spousal support, discussed below.
Spousal Support Waivers Under Family Code § 1612(c)
For many years, California courts treated spousal support waivers in premarital agreements as against public policy. The California Supreme Court changed course in In re Marriage of Pendleton and Fireman (2000) 24 Cal.4th 39, and the Legislature responded by adding § 1612(c). Under that section, a provision regarding spousal support is not enforceable if the party against whom enforcement is sought was not represented by independent counsel when the agreement was signed. Even with independent counsel, a spousal support provision is not enforceable if it is unconscionable at the time of enforcement.
Independent counsel is therefore necessary but not sufficient. A support waiver that looked fair when signed may be tested again years later when enforcement is sought. A careful California agreement treats spousal support separately from property, often with a schedule of support tied to the length of the marriage rather than a flat waiver, and each party has their own lawyer if spousal support is addressed at all.
The Two Seven-Day Rules in Family Code § 1615(c)
After In re Marriage of Bonds (2000) 24 Cal.4th 1, the Legislature added § 1615(c), which provides that a premarital agreement is deemed not to have been executed voluntarily unless the court finds each of several conditions. Two of them involve seven-day periods that are often confused.
The Advisement of Counsel
Under § 1615(c)(1), the party against whom enforcement is sought must have been represented by independent counsel when signing, or must have been advised to seek independent counsel and expressly waived counsel in a separate writing. The advisement to seek counsel must come at least seven calendar days before signing. This rule was declared declaratory of existing law, so it is not limited to agreements signed after a particular date.
Seven Days With the Final Agreement
Under § 1615(c)(2), for agreements executed on or after January 1, 2020, at least seven calendar days must pass between the time the party was first presented with the final agreement and the time the party signed it, whether or not the party was represented by counsel. This amendment, Assembly Bill 1380 (Stats. 2019, ch. 193), prospectively superseded In re Marriage of Cadwell-Faso and Faso (2011) 191 Cal.App.4th 945, which had held the earlier waiting period did not apply to a represented party. Agreements signed before 2020 are judged under the prior rule.
In practice, this means the final draft must be ready well before the wedding. Last-minute revisions restart the clock on the final agreement, which is why the week of the wedding is the most common failure point for California prenuptial agreements.
The Unrepresented Party
Under § 1615(c)(3), if the party was not represented by independent counsel, the party must have been fully informed of the terms and basic effect of the agreement, and of the rights and obligations they were giving up, in a language in which they are proficient, and must have signed a separate document declaring that they received the information and identifying who provided it. The remaining conditions address duress, fraud, undue influence and lack of capacity, and any other factors the court deems relevant.
How California Courts Apply the Voluntariness Presumption
Section 1615(c) creates a presumption of involuntariness. In Last v. Superior Court (2023) 94 Cal.App.5th 30, the court held that the spouse seeking to enforce the agreement must present evidence supporting each of the required findings; facial compliance is not enough, and the findings must actually be requested and made. In In re Marriage of Clarke and Akel (2018) 19 Cal.App.5th 914, the court held that recitals in the agreement itself do not cure a failure to meet the statute, that a waiver of counsel does not satisfy the separate requirements for an unrepresented party, and that the statutory conditions cannot be selectively severed.
The drafting lesson is that the process must be documented as it happens: the date of the advisement to seek counsel, the date the final agreement was delivered, the identity of each party’s lawyer, and any separate writings the statute requires. A good California prenuptial agreement file is built to prove those facts years later.
Enforceability Beyond Voluntariness
Under § 1615(a), a premarital agreement is also unenforceable if the challenging party proves that the agreement was unconscionable when executed and, before execution, the party was not provided a fair, reasonable and full disclosure of the other’s property and financial obligations, did not voluntarily and expressly waive that disclosure in writing, and did not have, or reasonably could not have had, adequate knowledge of the other’s property and obligations. Complete financial disclosure, usually through schedules attached to the agreement, is the strongest protection.
Section 1617 tolls any statute of limitations for claims under a premarital agreement during the marriage, so a challenge may come decades after signing.
Rights at Death and Estate Planning
A prenuptial agreement often includes waivers of rights at death, such as a surviving spouse’s share of community and quasi-community property and the rights of an omitted spouse. California’s Probate Code, §§ 140–147, has its own rules for waivers of these rights, including disclosure and independent counsel provisions. A California prenuptial agreement should satisfy both the Family Code and the Probate Code where death rights are waived, and it should be coordinated with each partner’s California will, trust and beneficiary designations. Holmes Law often updates or creates a revocable trust alongside the prenup so that property the agreement makes separate is titled and distributed consistently.
The Retirement Plan Trap
Federal law creates one of the most common gaps in otherwise sound agreements. Under 26 C.F.R. § 1.401(a)-20, Q&A-28, a waiver of survivor benefits in a qualified retirement plan made in a premarital agreement does not satisfy federal spousal consent requirements, because only a spouse can give that consent. After the wedding, the spouse must sign a separate waiver that meets the plan’s requirements. A California prenuptial agreement should require that post-wedding waiver and set a deadline for it.
Choice of Law and Couples Who Move
Many couples marry in one state and later move. A premarital agreement can choose the law that governs it, but a California court may still apply California requirements when the agreement is enforced here, and moving between community property and common law states changes how property is characterized. Couples planning to live in more than one state should say so at the start so the agreement is drafted with that in mind.
Working With Holmes Law on a Prenuptial Agreement
A typical engagement with Michael Holmes includes an initial consultation, collection of financial information for both parties, a draft agreement with disclosure schedules, negotiation through the other party’s independent counsel, final revisions early enough to satisfy the seven-day rules, and a documented signing. Holmes Law represents one party only. The other partner must have their own lawyer, particularly if spousal support is addressed. Starting three to six months before the wedding leaves room for negotiation without pressure on the statutory deadlines.
Common Drafting Choices in California Prenups
Beyond the statutory requirements, most of the work in a California prenuptial agreement is deciding how the couple’s own property rules will differ from the community property defaults. Common choices include:
- Earnings. Whether each spouse’s earnings during the marriage remain community property, become each earner’s separate property, or are split, for example with a joint account funded by agreed contributions.
- Businesses. Whether a business owned before marriage stays entirely separate, including growth caused by a spouse’s work during the marriage, or whether the community receives a defined share of that growth. Without an agreement, California courts apportion that growth under the Pereira and Van Camp approaches, which can produce unpredictable results.
- Reimbursement rights. Whether contributions of separate property to community assets, such as a down payment on a home, will be reimbursed under Family Code § 2640, and whether the community will be reimbursed for payments on a separate property mortgage.
- The family home. How title will be held, what happens to it on separation or death, and whether a surviving spouse may stay in the home for a period of time.
- Debts. Whether debts incurred before or during the marriage remain the responsibility of the spouse who incurred them.
Each choice has trade-offs. An agreement that keeps everything separate is simple to draft but may leave a lower-earning spouse with little, which can undercut enforceability of any related support provisions and can strain the relationship. Many couples choose a middle path that protects specific assets while sharing some of the growth built together.
Frequently Asked Questions
How far before the wedding should a California prenup be signed?
At least seven calendar days after the final agreement is presented, under § 1615(c)(2), and at least seven days after the advisement to seek counsel. In practice, finishing a month or more before the wedding is much safer, because any change to the final draft can restart the clock.
Do both parties need separate lawyers?
Separate lawyers are not required for the whole agreement, but they are required for an enforceable spousal support provision under § 1612(c), and an unrepresented party triggers additional statutory requirements. Separate counsel is strongly recommended.
Can a California prenup waive spousal support?
It can address spousal support, but only if the party giving up support had independent counsel, and even then the provision is unenforceable if it is unconscionable at the time of enforcement.
Can a prenup decide child custody or child support?
No. Child support cannot be adversely affected by a premarital agreement, and custody is decided by the court based on the child’s best interests.
Can we change our prenup after the wedding?
Yes. Under § 1614, it can be amended or revoked by a written agreement signed by both spouses. Changes to property character after marriage may also need to satisfy California’s transmutation rules, discussed on the postnuptial agreements page.
Does Holmes Law handle the divorce if we separate later?
No. In California, Holmes Law’s family law work is limited to prenuptial and postnuptial agreements. A separate family law attorney would handle a California divorce.
Speak With a California Prenuptial Agreement Attorney
Holmes Law drafts and reviews California prenuptial agreements with the Family Code’s disclosure, counsel and seven-day requirements built into the schedule. The practice is remote, so meetings happen by phone or video wherever you are in California. To discuss a prenuptial agreement, contact Holmes Law to schedule a consultation with Michael Holmes. Contacting Holmes Law does not create an attorney-client relationship, and this page is general information, not legal advice for your situation.