What Can (and Can’t) Be Included in a Prenup?

Prenuptial agreements aren't just for wealthy couples or people preparing for the possibility of divorce. A well-drafted prenup can help couples establish clear financial expectations before marriage and determine how certain assets, debts, and financial responsibilities will be handled in the future.

But a prenup can't include just anything.

In Idaho, prenuptial agreements can address a wide range of financial and property matters, but there are important limitations on what they can accomplish. Understanding those boundaries can help couples have more productive conversations and create an agreement that reflects their circumstances and goals.

Here are some of the most common issues a prenuptial agreement can and can not address.

What Can Be Included in a Prenuptial Agreement?

1. Assets and Property

One of the primary purposes of a prenuptial agreement is to establish expectations regarding property.

Couples often enter marriage with assets they've acquired independently, including:

• Homes and other real estate
• Savings accounts
• Investment accounts
• Retirement accounts
• Vehicles
• Valuable personal property
• Business interests

A prenuptial agreement can identify the property each person owns before marriage and establish rights and responsibilities regarding that property.

A prenup can also address how certain property will be managed or distributed if the marriage ends or one spouse dies. This can be particularly valuable when one or both people enter the marriage with substantial assets or property they want clearly identified.

Why it matters: Clearly documenting property and financial expectations before marriage can reduce uncertainty about ownership and help prevent disagreements later.

2. Existing Debt and Financial Obligations

Assets aren't the only financial consideration couples bring into a marriage. Many people also have existing financial obligations, including student loans, credit card balances, personal loans, mortgages, or business debt.

A prenuptial agreement can help couples, and creditors, establish expectations regarding certain financial obligations and clarify how debt will be addressed between them.

The process of creating a prenup can also encourage couples to disclose their financial situations before marriage. Understanding what each person owns and owes can help both partners begin the marriage with greater financial transparency.

Why it matters: Debt can significantly affect a couple's financial plans. Discussing existing obligations before marriage can help both partners make informed decisions and avoid unpleasant financial surprises.

3. Business Ownership

For entrepreneurs and business owners, a company may represent years of work, their livelihood, and one of their most valuable assets.

A prenuptial agreement can address ownership rights in a business and establish expectations for how a business interest may be treated during the marriage or upon its termination.

This may be particularly important for someone who owns a business before marriage or operates a company with partners, employees, or family members. Questions about ownership can affect more than just the couple; uncertainty about a business interest may also affect others who depend on the company's stability.

Business owners may want to consider questions such as:

• Who owns the business before marriage?
• How will changes in the business's value be addressed?
• What rights or responsibilities will each spouse have regarding the business?
• How might separation or divorce affect the owner's business interest?

Why it matters: Addressing business ownership before marriage can help establish expectations and support continuity for the company, its owners, employees, and other stakeholders.

4. Inheritances and Estate Planning

Prenuptial agreements can also play a role in broader estate planning.

For example, someone entering marriage may expect to receive an inheritance or may already have assets they hope to preserve for children from a previous relationship. A prenup can help establish expectations regarding certain property and may work alongside wills, trusts, and other estate planning documents.

Idaho law specifically allows premarital agreements to address arrangements involving wills and trusts intended to carry out the agreement.

However, a prenup shouldn't be viewed as a replacement for an estate plan. Couples may need to coordinate their prenuptial agreement with wills, trusts, beneficiary designations, and other planning documents so that their intentions work together.

Why it matters: Marriage can affect long-term financial and estate planning. Coordinating a prenup with an estate plan can help couples clearly document their intentions for their property and their families.

What Can't Be Included in a Prenup?

A prenuptial agreement provides considerable flexibility, but there are limits.

Child Support Cannot Be Taken Away

In Idaho, a prenuptial agreement cannot adversely affect a child's right to support.

For example, a couple cannot use a prenup to simply eliminate a future child's right to financial support. Decisions involving children are subject to applicable law and, when necessary, the authority of the court.

This is an important distinction because a prenuptial agreement primarily establishes rights and responsibilities between the two people entering the marriage. It cannot be used to sign away rights that belong to a child.

Provisions That Violate Public Policy or the Law May Not Be Enforceable

Idaho law gives couples flexibility to address other personal rights and obligations in a premarital agreement, but those provisions cannot violate public policy or certain laws.

That's one reason downloading a generic prenuptial agreement online or copying someone else's agreement can create problems. A provision that sounds reasonable to the couple may not necessarily be enforceable under Idaho law.

When Might a Court Refuse to Enforce a Prenup?

What goes into a prenuptial agreement matters, but how the agreement is created matters too.

Under Idaho law, a premarital agreement may be unenforceable if the person challenging it proves they did not enter into it voluntarily.

Enforceability may also become an issue when an agreement was unconscionable at the time of signing, and there were problems involving disclosure or knowledge of the other party's property and financial obligations.

In other words, financial transparency matters. Couples should take the process seriously and allow enough time to review and understand an agreement before signing it.

Idaho also requires a premarital agreement to be in writing and signed by both parties.

Why it matters: A prenup is only useful if it can accomplish its intended purpose. Proper preparation, financial disclosure, and voluntary participation can be just as important as the provisions included in the document.

Frequently Asked Questions

Can a prenup protect assets I owned before marriage?

A prenuptial agreement can identify property owned before marriage and establish rights and responsibilities related to that property. The appropriate provisions depend on the couple's assets, goals, and circumstances.

Can debt be included in a prenuptial agreement?

A prenup can address financial obligations and establish expectations regarding certain debts. Couples considering a prenup should disclose their financial circumstances and discuss existing obligations before signing.

Can a prenup protect my business?

A prenuptial agreement can address ownership rights involving a business. This may be particularly important for entrepreneurs who owned their company before marriage or have business partners, employees, or family members with an interest in its continued stability.

Can a prenup determine child support?

A prenuptial agreement cannot adversely affect a child's right to support under Idaho law. Child-related matters are subject to applicable law and cannot be eliminated by agreement between prospective spouses.

Do both people need to sign a prenup?

Yes. Under Idaho law, a premarital agreement must be in writing and signed by both parties.

Create a Prenup That Reflects Your Future

A prenuptial agreement can address much more than what happens if a marriage ends. It can give couples an opportunity to discuss assets, debt, business ownership, inheritance, and other financial expectations before they begin their lives together.

Just as importantly, couples should understand what a prenup cannot accomplish and what factors could affect whether an agreement is ultimately enforceable.

Because every relationship and financial situation is different, a one-size-fits-all document may not adequately address your needs. If you're considering a prenuptial agreement, the attorneys at McFarland Ritter can help you understand your options under Idaho law and create an agreement tailored to your circumstances.

McFarland Ritter serves individuals and families throughout Boise and the Treasure Valley with practical legal guidance designed to help protect what matters most.