Prenup/Premarital Agreement - When should you sign it?

Brides and grooms in California who want an enforceable Premarital Agreement are best advised to take action well before the wedding date.

Of course, it can be daunting, in the middle of planning for a wedding, to step back and take care of the legalities. And it is often human nature to take care of things at the last minute. However, if you want to increase the likelihood of having your Premarital Agreement take effect if it is ever needed, there are a few things to remember.

- The Premarital Agreement must be signed before the wedding.

The moment you marry, you acquire new legal duties toward your new spouse. If you want to create a written agreement regarding your marriage after the ceremony, you would need to create a different document, referred to as a “Marital Agreement” instead of a “Premarital Agreement”.

- You may want to consider holding the Premarital Agreement, unsigned, for seven days before you sign it.

Years ago, a Premarital Agreement, signed by bride and groom moments before the wedding, could very likely be enforced if the marriage ended. However, after a few unsuspecting spouses later learned what they had agreed to in the heat of the moment, the legislature enacted what came to be known as the “Seven Day Rule”. The Seven Day Rule provided that a Premarital Agreement is not enforceable unless the aggrieved spouse had at least seven days between the time that spouse was first presented with the Premarital Agreement (and advised to seek independent legal counsel) and the time the Premarital Agreement was signed.

Later decisions by the courts carved out at least one exception to the Seven Day Rule. One case determined that the Seven Day Rule does not apply to an aggrieved spouse if that spouse was represented by an attorney “from the outset”. There is now a strong argument that such a Premarital Agreement, signed less than seven days from its first presentation, would be enforceable if it complies with the other legal requirements.

As a practical matter, Premarital Agreements are typically modified and edited many times before the final draft is agreed upon, especially if attorneys are involved. To avoid later questions, possibly decades into the future, about when a Premarital Agreement was “first presented”, what modifications, corrections of typographical errors, or insertions of a word, were made, or when, or by who, and uncertainties regarding whether a spouse was “represented by an attorney from the outset”, it is often advisable to simply arrange for each prospective spouse to hold his or her copy of the Premarital Agreement, unsigned, for seven days, and then sign it, without making any changes, at any time after that seven-day period, but, of, course, before the ceremony.

Disclaimer - The information in this blog is general in nature. The law is constantly changing, and exceptions, and exceptions to exceptions, run rampant throughout the legal system. Every case is different. You are advised to contact an attorney with any questions you may have about your individual case.