Does a Prenup Expire in California?

No. A California prenup does not expire on its own. Under the state's Uniform Premarital Agreement Act, it takes effect when you marry and stays in force until both spouses change or revoke it in a signed writing, a court refuses to enforce it, or the agreement's own terms end it, such as through a sunset clause.

Some readers have a prenup signed years ago and wonder whether it still means anything, or have heard that prenups "dissolve" after ten years. Others are engaged and want to know whether they can build an end date into a new agreement. This article explains how long a prenup lasts under California law, how sunset clauses work, when a court may decline to enforce one, and how a married couple can change theirs.

What California Law Says About Prenuptial Agreement Duration

California prenups are governed by Family Code sections 1600 through 1617, which section 1600 names the Uniform Premarital Agreement Act. A premarital agreement, as section 1610 defines it, is an agreement between two people planning to marry, made in contemplation of marriage and meant to take effect when they marry. In plain terms, it is a written contract that sets out how property and financial matters will be handled during or after the marriage. Section 1611 requires it to be in writing and signed by both parties.

Family Code section 1613 is short: "A premarital agreement becomes effective upon marriage." Nothing in the Act sets an end date after that. There is no provision that retires the agreement after five, ten or twenty years, and none that ends it because a couple had children or bought a house.

What the Act does provide is a single path for change during the marriage. Under section 1614, after marriage the agreement "may be amended or revoked only by a written agreement signed by the parties." Until that happens, the agreement keeps its force, subject to the enforceability rules discussed below. Family Code section 1500 adds the broader point that the property rights spouses would otherwise have by statute "may be altered by a premarital agreement or other marital property agreement."

For a Carlsbad couple, the place where these questions are generally raised is the family law court that generally hears Carlsbad cases: the Superior Court of California, County of San Diego, North County Regional Center, 325 South Melrose Drive, Vista. The rules that court applies are the statewide Family Code sections described here. More background on how these agreements are drafted appears on the firm's page on prenuptial agreements in California.

Sunset Clauses: How an Expiration Date Gets Into a Prenup

The Act itself contains no expiration date, but the parties can write one in. A sunset clause is a provision in the agreement that causes the whole agreement, or particular terms in it, to end after a set period or when a named event happens. The term does not appear in the Family Code. It is a drafting choice.

The room for that choice comes from Family Code section 1612(a), which lists what a premarital agreement may cover. It includes each party's rights in property "whenever and wherever acquired or located," the right to manage and control property, and "the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event." It also reaches wills and trusts that carry out the agreement, life insurance death benefits, the choice of governing law, and "any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." Because the parties may tie property outcomes to events, they may also tie the life of a provision to time or to a triggering event.

As illustrations only, a sunset trigger might be:

• reaching a set number of years of marriage;
• the birth or adoption of a child;
• a specific calendar date.

Two kinds of clauses work quite differently. One ends the entire agreement, so that after the trigger the couple's property is treated as if no prenup existed. The other changes only part of it. One example is a spousal support waiver written to lapse after ten years of marriage, while the property terms stay in place.

A sunset clause sits inside the agreement, so if a court refuses to enforce the agreement under section 1615, the clause goes with it. A spousal support term has its own test under section 1612(c), discussed below.

When a Prenup Can Be Challenged or Set Aside Under California Law

Family Code section 1615 is the closest thing California law has to an "expiration" outside a sunset clause, and it works through a court, not the calendar. Under section 1615(a), the agreement is not enforceable if the party resisting it proves one of two things.

The first is that the party "did not execute the agreement voluntarily." Section 1615(c) gives voluntariness a specific meaning. A prenup is deemed not voluntary unless the court finds, in writing or on the record, all of the following:

• The party had independent legal counsel when signing, or, after being advised to get counsel, waived it in a separate writing. That advisement must come at least seven calendar days before the final agreement is signed.
• For agreements signed on or after January 1, 2020, the party had not less than seven calendar days between first being presented with the final agreement and signing it, whether or not the party is represented by a lawyer. For agreements signed between January 1, 2002 and January 1, 2020, the seven calendar days run between the time the party was first presented with the final agreement and advised to seek independent counsel and the time of signing. Under either version, the requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.
• If the party had no lawyer, the party was fully informed in writing of the agreement's terms and basic effect and the rights being given up, was proficient in the language used, and signed a document saying who provided that information.
• The agreement and those writings were not signed under duress, fraud or undue influence, and neither party lacked capacity.
• Any other factors the court considers relevant.

The second ground is that the agreement was unconscionable when it was executed. Under section 1615(a)(2), that alone is not enough. All of the following must also apply: before signing, the party was not provided a fair, reasonable and full disclosure of the other party's property or financial obligations, did not voluntarily and expressly waive in writing any right to disclosure beyond what was provided, and did not have, or reasonably could not have had, adequate knowledge of those finances. Section 1615(b) says the judge decides unconscionability as a matter of law.

Spousal support terms have their own rule. Under section 1612(c), a provision about spousal support, including a waiver, is not enforceable if the party it is used against had no independent counsel when signing, or if the provision is unconscionable at the time of enforcement. That last phrase matters: a support term is judged as things stand when someone tries to enforce it, not only when it was signed. Section 1612(b) separately protects children: a child's right to support "may not be adversely affected" by a prenup.

Section 1617 says any statute of limitations for a claim under a premarital agreement is tolled (paused) during the marriage, but equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

Amending or Revoking a Prenup After Marriage

Section 1614, introduced above, is the rule: once married, a couple changes or ends their prenup only by a written agreement both of them sign. A spoken understanding, however sincere, does not meet that standard. Section 1614 also says the amendment or revocation is enforceable without consideration, meaning neither spouse has to give something new in exchange.

An agreement that spouses make with each other after the wedding about property or financial matters is sometimes called a postnuptial agreement or a marital agreement. It might amend one clause, replace the prenup entirely, or revoke it. A couple who wants to add a sunset clause that was not in the original, or remove one that was, does it the same way, through a signed written amendment.

Agreements made during marriage sit under a different statute from the prenup rules. Family Code section 721 says spouses dealing with each other "are subject to the general rules governing fiduciary relationships," which imposes "a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other." That duty includes giving the other spouse access to records and providing "true and full information" about transactions involving community property on request. Because a postnuptial agreement is a transaction between spouses, section 721(b) applies to it.

What Happens to a Prenup at Death or Divorce

Divorce does not end a prenup. When a marriage is dissolved, the agreement can govern property and spousal support to the extent it is enforceable under sections 1612 and 1615. The overall steps of a dissolution case are laid out on the firm's page on the California divorce process timeline.

Section 1615(a) makes an agreement unenforceable if "the party against whom enforcement is sought" proves one of the two grounds described above. Where a business or support term is at stake, the related questions are covered in the firm's pages on business owner divorce and spousal support in California.

Death raises different issues. Section 1612(a)(3) lets the parties decide the disposition of property upon death, and sections 1612(a)(4) and (5) let them address wills, trusts and life insurance death benefits. Nothing in sections 1600 through 1617 ends the agreement at a spouse's death, so what happens to those terms depends on what the agreement itself says.

One narrower situation is a marriage later found void. Under section 1616, the agreement is then enforceable "only to the extent necessary to avoid an inequitable result."

Reviewing an Existing Prenup: What to Look For

The first place to look is the agreement's own text. Any sunset clause or time-limited term will be written there; the law does not imply one. Look for language that ties a provision to a number of years, a date, or an event such as a child's birth.

Next comes how the agreement was signed. The questions under section 1615(c) are practical ones: when the final version was first presented, when it was signed, whether each party had a lawyer or signed a separate written waiver, and, for an unrepresented party, whether the written explanation of rights exists. Missing pieces can put enforceability in question.

Then there is life since the wedding. Children, a home in Carlsbad or a move to Oceanside, Encinitas or San Marcos, a business that grew from a side project: none of these automatically voids the agreement. They can, however, change how particular provisions play out. A spousal support term is the clearest example, since section 1612(c) asks whether it is unconscionable when enforcement is sought, years after signing.

A person with an older prenup may be asking two questions at once: what does this say, and would it hold. The document answers the first. The second depends on the signing history and present circumstances.

If You'd Like to Talk Through Your Prenup

Whether a prenup still holds usually comes down to details that are not visible on its face: the dates the final draft was presented and signed, who had counsel, what financial disclosure was exchanged, and whether any term has a time limit built in. A consultation is a place to raise those questions. Carlsbad Family Law Advocates practises California family law only. To talk with the firm about prenups and how long they last, call Carlsbad Family Law Advocates at (760) 840-5102 to arrange a confidential consultation.