Can a Prenup Be Changed After Marriage in California?

Yes. If you signed a prenup and are now married, California law lets you and your spouse change it or cancel it. The catch is the form. The change must be a written agreement signed by both of you. A spoken promise or a handshake does not change the prenup, however sincere it was.

Most people facing this question signed their prenup years ago, often in a hurry before a wedding, and life has moved on since. A business has grown, a home in Carlsbad has been bought, children have arrived, or an inheritance is on the horizon. The terms that felt right at the time may no longer fit, and it is hard to tell from the document itself whether it can be reopened and what it would take for a new version to hold up.

This article walks through the California rule that allows a prenup to be changed, how a postnuptial agreement works, what a postnuptial agreement can change about the character of property, and what happens if a prenup is simply cancelled with nothing to replace it.

What California Law Says About Changing a Prenup After Marriage

Family Code section 1614 is the controlling rule. In full, it reads: "After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration."

A premarital agreement, the formal name for a prenup, is an agreement between two people planning to marry, made "in contemplation of marriage and to be effective upon marriage" (Family Code section 1610). Prenups are governed by the California Uniform Premarital Agreement Act, Family Code sections 1600 through 1617. The original agreement also had to be in writing and signed by both people (Family Code section 1611). There is more on how prenups are formed in the firm's guide to prenuptial agreements in California.

Section 1614 allows two different things. To amend is to change particular terms while keeping the rest of the agreement in place. To revoke is to cancel the agreement entirely. Either one is allowed after marriage, and either one takes the same form: a writing signed by both spouses. "Without consideration" means neither spouse has to give the other something in exchange for the change to be enforceable.

The document spouses sign to change or replace a prenup after the wedding is usually called a postnuptial agreement.

How a Postnuptial Agreement Works Under California Law

A postnuptial agreement, sometimes called a postmarital agreement, is a written contract between spouses made after they marry. Family Code section 1500 recognizes that the property rights the law gives spouses may be altered by a premarital agreement "or other marital property agreement," and a postnuptial agreement falls in that second group.

What sets it apart is the relationship the spouses are already in. Under Family Code section 721, spouses may deal with each other over property as if unmarried, but in transactions between themselves they are in a confidential, fiduciary relationship. The statute describes this as "a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other."

A postnuptial agreement can amend or revoke a prenup, so long as it meets the written-and-signed requirement of section 1614.

What Can and Cannot Be Changed in a Prenup

Family Code section 1612(a) lists the subjects a premarital agreement may cover, and section 1612(b) sets one limit: "The right of a child to support may not be adversely affected by a premarital agreement."

A postnuptial agreement can also change the character of property, meaning whether an asset is community or separate. The law calls this a transmutation. Under Family Code section 852, "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." A change involving real estate is not effective against third parties without notice unless it is recorded. Section 852(c) does not apply to a gift between the spouses of clothing, wearing apparel, jewelry or other tangible articles of a personal nature, used solely or principally by the spouse who receives it, that is not substantial in value.

A transmutation, then, takes more than a signature on a general agreement. The writing has to say plainly that ownership is changing.

Spouses' Rights to Information in Transactions Between Them

Family Code section 721 gives each spouse specific rights in property transactions. These include access at all times to any books kept about a transaction, "true and full information of all things affecting any transaction that concerns the community property" upon request, and an accounting for any benefit one spouse takes from community property without the other's consent.

The firm's page on business owner divorce covers how a business is valued and disclosed.

When Married Couples in Carlsbad Typically Revisit a Prenup

For spouses in Carlsbad who signed a prenup years ago, the reasons to look at it again can come from changes in their lives. Circumstances that can prompt a second look include:

• Changes in finances. A business started before marriage grows, one spouse's income rises sharply, or the couple buys real property the prenup never anticipated.
• Children. After children are born, couples sometimes question how the prenup's property terms fit the family's needs. Child support terms, as noted above, are outside what a prenup can restrict.
• An inheritance. One spouse receives or expects a substantial inheritance, and the couple wants to address it in writing.
• A change in ownership. Spouses may want to turn a separately owned home into community property, or the reverse, in a way the original agreement did not provide for.

These agreements are governed by California law statewide. If a dispute over a prenup or postnuptial agreement reaches court as part of a divorce, a Carlsbad case is generally heard at the Superior Court of California, County of San Diego, North County Regional Center, 325 South Melrose Drive, Vista, CA 92081. The firm serves people in Oceanside, Vista, San Marcos, Encinitas, Solana Beach, Del Mar, and Rancho Santa Fe. How these agreements fit into a case is part of the larger divorce process in Carlsbad.

What Happens If a Prenup Is Revoked Without a Replacement Agreement

When a prenup is revoked under Family Code section 1614 and no new agreement takes its place, California's default property rules generally apply. Under Family Code section 760, except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

Separate property is defined in Family Code section 770. It includes property owned before marriage, property received during marriage by gift, bequest, devise, or descent (inheritance), and the rents, issues, and profits from that property. A spouse may transfer their own separate property without the other's consent.

If spouses want to change the character of particular assets as part of a revocation, they would need a writing that meets section 852.

The firm's overview of family law in Carlsbad explains how property division fits alongside custody and support.

If You'd Like to Talk Through Your Prenup

Whether a prenup can be changed is usually the easy part. The harder questions are whether the original agreement was signed in a way that holds up, how a new agreement would handle a business, a home, or an inheritance, and what the fiduciary duty between spouses requires during the process. A consultation is a place to raise those questions. The firm practices California family law only.

To talk with the firm about changing or revoking a prenup, call Carlsbad Family Law Advocates at (760) 840-5102 for a confidential consultation.