A prenuptial agreement, which Massachusetts statutes and older cases call an antenuptial agreement, lets two people decide before they marry how property and support will be handled if the marriage ends in divorce or death. Massachusetts treats these agreements differently from most of the country: it never adopted the Uniform Premarital Agreement Act, it can divide property that either spouse brought into the marriage, and its courts take a “second look” at an agreement when it is enforced. A Massachusetts prenuptial agreement attorney drafts with those rules in mind so the agreement still works years later. Holmes Law is the practice of Michael Holmes, an attorney admitted in Massachusetts and five other states.
In Massachusetts, Holmes Law’s family law work is limited to marital agreements: prenuptial agreements and postnuptial (marital) agreements. It does not handle divorce litigation, custody, child support or other family court matters in Massachusetts; full-service family law is offered only in Idaho. This page goes deeper on prenuptial agreements than the broader Massachusetts marital agreements page and pairs with the page on Massachusetts postnuptial agreements. It is general information, not legal advice, and one attorney cannot represent both future spouses.
Why Massachusetts Couples Sign Prenuptial Agreements
The main reason is G.L. c. 208, § 34. When a Massachusetts court divides property on divorce, it can reach all property of both spouses, however and whenever acquired. The Supreme Judicial Court confirmed in Williams v. Massa, 431 Mass. 619 (2000), that property one spouse owned before the marriage or inherited during it can be included in the divisible estate. Inclusion is not the same as division; in Williams itself, the court affirmed an award of the inherited assets entirely to the husband. But without an agreement, a spouse’s premarital savings, a family business, an expected inheritance or a closely held interest is on the table, and the outcome depends on a judge’s weighing of the statutory factors.
Other common reasons include protecting children from a prior relationship, keeping a business or professional practice out of a future dispute, addressing a large difference in income or wealth, defining how a home bought with one partner’s funds will be treated, and setting expectations about alimony. For many couples the conversation itself, about finances, estate plans and what each expects, is a significant part of the value.
The Legal Framework: Chapter 209 and the Case Law
No Uniform Premarital Agreement Act
Idaho, California, Texas and North Carolina have each adopted a version of the Uniform Premarital Agreement Act. Massachusetts has not. The Appeals Court noted the point in Austin v. Austin, 62 Mass. App. Ct. 719 (2004), and in DeMatteo v. DeMatteo, 436 Mass. 18 (2002), the Supreme Judicial Court expressly declined the uniform act’s approach to unconscionability. Massachusetts prenuptial law is therefore mostly case law, built on a short enabling statute.
G.L. c. 209, §§ 25 and 26
Section 25 of Chapter 209 authorizes parties to make a written contract before marriage about property that either owns at the time of the marriage and property acquired afterwards. Section 26 sets out recording requirements that are frequently overlooked. The contract should have a schedule of the property annexed, and it must be recorded before the marriage or within 90 days after it, in the registry of deeds for the county where the husband resides (as the statute is written) and in every county where affected real estate lies. An unrecorded contract is “void except as between the parties thereto and their heirs and personal representatives.” In other words, failing to record does not defeat the agreement between the spouses, but it can defeat it against creditors and other third parties. Holmes Law addresses recording as part of every Massachusetts prenuptial agreement.
The Two-Step DeMatteo Test
The central case is DeMatteo v. DeMatteo, which, building on Osborne v. Osborne, 384 Mass. 591 (1981), set out how a Massachusetts court reviews a prenuptial agreement.
Step one: fair and reasonable at execution
The court first asks whether the agreement was valid when it was signed. That involves full and fair disclosure of each party’s financial circumstances, the absence of fraud and duress, and an understanding of the rights being waived. The agreement must also have been “fair and reasonable” at signing, but the standard is deliberately limited. An agreement does not fail because it is one-sided or because one party gave up more than a court would have awarded. Under DeMatteo, the agreement is invalid at this stage only where the contesting party is “essentially stripped of substantially all marital interests.”
The Appeals Court’s decision in Biliouris v. Biliouris, 67 Mass. App. Ct. 149 (2006), shows how much pressure an agreement can withstand. The agreement there was signed one week before the wedding by a pregnant bride who had been told there would be no marriage without it, and who signed against her own lawyer’s advice. It was enforced. That result is not a drafting strategy. Good practice is to allow ample time, exchange complete disclosure and ensure each party has independent counsel, because an agreement that is challenged costs far more than one that is never challenged.
Step two: the second look
Even an agreement that was valid at signing is examined again when it is enforced. DeMatteo deliberately used the word “conscionable” rather than the unconscionability standard of other states. The second look asks whether, because of circumstances that arose during the marriage, enforcing the agreement would leave the contesting spouse “without sufficient property, maintenance, or appropriate employment to support” themselves. It is not a review of whether the bargain turned out badly or whether it is one-sided. A spouse who agreed to a modest property settlement and can still support themselves will generally be held to the agreement.
In Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015), an agreement awarded a spouse a specific asset whose value later collapsed, leaving property with negative equity and code violations. Enforcing that asset-specific provision was held not conscionable. The drafting lesson is to express a spouse’s share as a value, percentage or formula, with a floor where appropriate, rather than as a named asset that may deteriorate.
Full Disclosure and Independent Counsel
Disclosure is the most important thing within the parties’ control. Each should provide a written statement of assets, liabilities and income, attached to the agreement, with values that are reasonable and supporting documents available. Valuation methods for a business or practice should be described. Understating or omitting significant assets is one of the most common grounds for a successful challenge.
Massachusetts does not require each party to have a lawyer for a prenuptial agreement to be valid, but independent counsel is strong evidence that each party understood the rights being waived. Holmes Law represents one party only. The other party should retain separate Massachusetts counsel, and the agreement should recite that both did so, while recognizing that a recital is not a substitute for the real thing.
Timing matters as well. Signing close to the wedding is not automatically fatal in Massachusetts, as Biliouris shows, but it invites argument about pressure and gives the other side’s lawyer less time to review disclosure. Beginning the process several months before the wedding is prudent.
Alimony Provisions
Massachusetts courts have enforced agreements that limit or waive alimony, on the basis of the case law in Osborne, DeMatteo and Austin. The Alimony Reform Act of 2011, G.L. c. 208, §§ 48–55, sets out general term alimony durations and other rules, but it does not itself address waiver of alimony by agreement, and it should not be cited as authorizing one. An alimony waiver is also the provision most exposed to the second look, because it bears directly on whether a spouse can support themselves. A graduated approach, such as a waiver that gives way to defined payments after a certain length of marriage or on the birth of children, is often more durable than a flat waiver.
What a Prenuptial Agreement Cannot Do
A prenuptial agreement cannot bind a court on child custody, parenting time or child support. Those issues are decided under the child’s best interests and the Massachusetts Child Support Guidelines at the time they arise. An agreement also cannot authorize conduct that is illegal or contrary to public policy, and provisions that attempt to penalize a spouse for seeking a divorce or that regulate day-to-day personal conduct are unlikely to be enforced and can undermine the rest of the document. A severability clause helps, but the better practice is to leave such provisions out.
Coordinating the Agreement With Estate Planning
A prenuptial agreement addresses death as well as divorce, and the two should be drafted together with the couple’s Massachusetts estate planning.
- Elective share. A surviving spouse can waive the right to take against the will under G.L. c. 191, § 15. The statute does not itself address a contractual waiver, so the waiver should be drafted deliberately and specifically, not left to general language.
- Retirement plans. Under federal regulations, 26 C.F.R. § 1.401(a)-20, Q&A-28, a waiver in a prenuptial agreement does not satisfy the spousal consent requirements for survivor benefits under a qualified retirement plan. The waiver must be signed by the spouse after the wedding, on the plan’s own form. The agreement should obligate each spouse to sign those forms after the marriage, and the couple should actually do it.
- Estate tax. Massachusetts has a state estate tax with a $2,000,000 threshold and no portability between spouses. An agreement that limits what passes to a surviving spouse can affect estate tax planning, which is another reason to coordinate it with wills and trusts.
- Life insurance and trusts. Many agreements provide that one spouse will maintain life insurance or fund a trust for the other, which can make the rest of the agreement more likely to survive the second look.
Common Drafting Choices in Massachusetts Prenuptial Agreements
Most Massachusetts agreements address some combination of the following:
- A definition of separate property that includes premarital assets, inheritances and gifts, and the income and appreciation on them, together with rules for tracing and commingling.
- Treatment of a business or professional practice, including whether marital contributions to its growth create any claim.
- Treatment of the marital home, including who contributed the down payment and how equity is divided.
- A formula or sliding scale that increases a spouse’s share with the length of the marriage.
- Alimony terms, often graduated rather than a complete waiver.
- Death provisions, elective share waivers and life insurance commitments.
- A dispute resolution clause, and choice of Massachusetts law where appropriate.
Given the second look, the most durable Massachusetts agreements are those that leave each spouse able to support themselves under a range of foreseeable circumstances, and that use values or formulas rather than specific assets.
How Holmes Law Handles a Massachusetts Prenuptial Agreement
The work usually follows the same sequence. First comes a consultation with the client alone to understand the assets involved, the goals for divorce and for death, and any family business, trust or expected inheritance. Next, the client assembles financial disclosure, and the other party is asked to do the same through their own counsel. Holmes Law then prepares a first draft, or reviews a draft prepared by the other side, and the terms are negotiated between counsel. Once the terms are settled, the final agreement, with disclosure schedules attached, is signed before a notary well ahead of the wedding. After signing, the agreement is recorded as G.L. c. 209, § 26 requires, and the client’s will, trust and beneficiary designations are updated to match it.
Two practical points deserve emphasis. First, both parties should keep a complete copy of the signed agreement and the disclosure that went with it, because in a Massachusetts challenge the question is what each party knew when they signed, and that can be decades later. Second, an agreement should be reviewed when circumstances change significantly, such as the birth of children, a major change in wealth, or a move to another state. Where the parties want to change its terms after the wedding, the amendment is a marital agreement and must satisfy the more demanding standard described on the postnuptial agreements page.
Frequently Asked Questions
Has Massachusetts adopted the Uniform Premarital Agreement Act?
No. Massachusetts prenuptial agreements are governed by G.L. c. 209, §§ 25–26 and case law, principally DeMatteo v. DeMatteo. Idaho, California, Texas and North Carolina have adopted versions of the uniform act; Massachusetts and Washington have not.
Do I need to record my Massachusetts prenuptial agreement?
G.L. c. 209, § 26 calls for recording before the marriage or within 90 days after it. An unrecorded agreement remains effective between the spouses and their heirs and personal representatives, but it is void against others, such as creditors. Recording is part of doing it properly.
What is the “second look”?
When the agreement is enforced, the court asks whether circumstances during the marriage mean enforcement would leave a spouse without sufficient property, maintenance or appropriate employment to support themselves. If so, the agreement is not conscionable as applied. A merely one-sided result is not enough.
Can a Massachusetts prenuptial agreement waive alimony?
Massachusetts courts have enforced alimony limitations and waivers under the case law. A waiver is the provision most exposed to the second look, so careful drafting matters.
Does each of us need a lawyer?
It is not legally required, but it is strongly advisable and makes the agreement much harder to challenge. A Massachusetts prenuptial agreement attorney can represent only one party.
Does Holmes Law handle Massachusetts divorces?
No. In Massachusetts, Holmes Law’s family law work is limited to prenuptial and postnuptial agreements.
Speak With a Massachusetts Prenuptial Agreement Attorney
If you are planning a wedding and want an agreement that will hold up under Massachusetts law, start early. Holmes Law can draft or review an agreement, coordinate it with your estate plan and handle recording. Contact Holmes Law about a Massachusetts prenuptial agreement to arrange a consultation with Michael Holmes.