Premarital Agreements

The state's interest in the subject matter of premarital agreements makes them more vulnerable to attack than ordinary contracts on the ground that they conflict with public policy. The net result is to limit the subjects on which prospective spouses can effectively contract.

Property and support rights. When a marriage dissolves by death of a spouse, state laws attempt to protect the financial interests of the survivor in a number of ways, including provisions for forced shares of each other's estates, homestead rights, exempt property, and family allowances. In most states, couples may alter these protections by premarital agreements. Some states consider certain protections more important than others and thus make it more difficult, or impossible, to waive or alter them—for example, widow's allowance or homestead rights when there are minor or dependent children, intestate shares, or rights to community property.

State law attempts to protect spouses on divorce as well, by providing for property division and for continued support in the form of alimony or maintenance. Premarital agreements altering these protections have been slower to win approval than those altering protections on death of a spouse and, before 1970, were almost universally held contrary to public policy. Courts thought they promoted divorce and commercialized marriage and that enforcing them would turn economically dependent spouses into public charges.

Since 1970, premarital agreements altering the incidents of divorce have gained wider acceptance. Divorce has become a common occurrence, and many married women have joined the labor force. Courts and legislatures now see these agreements, setting forth the parties' expectations and responsibilities, as devices for promoting marital stability and, accordingly, encourage them.

The states that enforce premarital agreements altering the incidents of divorce divide on provisions altering support rights. Some consider support a subject that couples cannot control by premarital agreement. Others allow premarital agreements altering support rights but refuse to enforce them if they are oppressive or unconscionable.

Employee benefits. Employee benefits, including pension rights, can be the subject of premarital agreements between prospective spouses except for those emanating from plans covered by ERISA (the Employee Retirement Income Security Act of 1974, as amended by the Equity Retirement Act of 1984). This act of Congress preempts state laws and requires covered employee benefit plans to pay benefits to both the worker and his or her nonparticipating spouse unless the spouse waives them in the manner prescribed by the act. There is doubt about the validity of such waivers in premarital agreements, which are executed before the parties marry, because ERISA requires waiver by a "spouse."

Structure of marriage. Sometimes the contracting couple, instead of, or in addition to, agreeing to alterations of property and support rights on death or divorce, uses a premarital agreement to structure the relationship by spelling out their personal rights and obligations. Courts have held such agreements unenforceable on the ground that it is improper for the judiciary to intervene in married couples' daily affairs.

Children. Minor children are, of course, subjects of special interest to the state, which stands in the role of parens patriae to them. As subjects of premarital agreements, children retain their special status. A number of states have statutes that prohibit couples from making premarital agreements adversely affecting their children's support rights. Provisions for children's custody, care, or education also get careful scrutiny from the courts. Those in derogation of the child's best interests will not survive challenge.