Prenup vs Postnup: What's the difference?

The number of couples opting for prenuptial (prenup) and postnuptial (postnup) agreements is rising, and these agreements are no longer just seen as a precursor to divorce. If you’re considering one, you’re in good company! ~40% of couples aged 18 to 34, whether married or engaged, have embraced prenuptial agreements.¹

When it comes to protecting your assets and outlining your wishes in the event of divorce or death, both prenups and postnups can play crucial roles. While both are legal agreements recognized in the state of California, there are some important differences between them that everyone should understand.

Timing
Let's start with arguably the most obvious difference between a prenup and a postnup: timing. As their pre- and post- designations suggest, a prenuptial agreement is crafted and signed before the wedding, while a postnuptial agreement is signed and entered into after the couple is already legally married. Sounds simple enough, but this difference in timing can impact various aspects of the agreement, including its content and enforceability.

Who It’s For
Prenups are for couples who’d like to form a contract about their rights and obligations regarding assets and debts before the wedding, so that their choices are memorialized and set by the big day. Postnups are ideal for couples who did not get a prenup but would like to revisit their financial obligations to each other once they are married. They can also address specific assets or circumstances that arise after marriage, like a sudden change in income. For example: if you start a business and want to designate it as separate property, or if you receive a large inheritance and want to treat it differently from default law.

Enforceability
Prenups are generally viewed as more enforceable than postnups. Postnups often face more scrutiny or are more likely to be challenged in court. They are less common, and there is a higher burden of proof to demonstrate that the agreement was entered into fairly and without coercion. It’s worth noting that prenuptial agreements can also be scrutinized and potentially invalidated, for example if they were not entered into voluntarily. However, prenups generally face less scrutiny than postnups.

Benefits of a Prenup

Protection of Property: Can clearly designate assets as separate property, whether acquired before or during marriage.
Spousal Support Terms: Can outline terms for spousal support or alimony.
Debt Protection: Can keep debt as separate property, safeguarding one spouse from the other’s liabilities.
Customization: Generally allows more customization in terms of clauses compared to a postnup.
Enforceability: More common and generally less scrutinized in a court of law.

Benefits of a Postnup

Asset Revaluation: Allows couples to revisit and reassess their assets acquired during the marriage.
Financial Inventory: Encourages couples to take stock of their current finances and obligations, fostering open dialogue.
Estate Planning: Enables the couple to consider the agreement in the context of estate planning, especially after having children.
Flexibility: Can be drafted at any time during the marriage, without time constraints.

Conclusion
Whether you choose a prenup or a postnup, both agreements aim to protect your finances and interests. Prenuptial agreements are typically easier to enforce and less costly to draft, making them a preferred choice for couples who have not yet tied the knot. However, postnuptial agreements are a tool for married couples looking to update their financial arrangements or address new circumstances.

At First, we offer prenuptial agreements to California couples looking for a speedy, simple, cost-effective agreement. For more information, schedule a free consultation with our team by visiting this link.

Disclaimer: First is not a law firm and the contents of this blog post are not legal advice. 

¹ Harris Poll for Axios, September 2023