California Family Code § 1612 – Premarital Agreements

Overview of Permissible Agreement Topics

Section 1612 of the California Family Code lists what prospective spouses can include in a premarital agreement. In plain language, it lets couples decide in advance how to handle their property and financial matters. They can define ownership of any property (present or future), how it’s managed, and how it will be distributed if they separate, divorce, or one spouse dies. Section 1612 also explicitly allows couples to make arrangements about wills, trusts, and even life insurance proceeds. For example, spouses may agree which assets stay separate, or how community property is divided (subparts (1)–(3) of §1612(a)). They can also choose the governing law for the agreement (subpart (6)).

The law protects certain rights as well. Section 1612(b) says a child’s right to support cannot be affected by the prenup. Subsection (c) adds rules on spousal support waivers. It says any clause waiving spousal support is unenforceable if the spouse against whom support would be enforced did not have independent legal counsel or if enforcing the waiver would be unfair (unconscionable). In other words, a prenup can include a support waiver only if the other spouse was fully informed and the waiver is fair when it’s time to enforce it.

Practical Examples

Managing property rights: Alice and Bob sign a prenup stating that each of them retains full rights over the property they bring into the marriage, and any future property they acquire on their own. They also agree that any business Bob starts during marriage remains his separate property. These terms are allowed under §1612(a)(1) and (2), which permit contracting about the parties’ property rights and how they control it.
Planning for future events: Carla and Dan’s agreement says that if they divorce or one spouse dies, Carla will receive certain savings and Dan will keep his family home. They also include provisions for wills and trust distributions to carry out the agreement (covered by §1612(a)(4)). Additionally, they specify that California law will govern their contract (§1612(a)(6)). All of these subjects – disposition at divorce or death, and choice of law – are expressly permitted by §1612.
Insurance and support: Eva and Frank agree that the life insurance policies they hold will benefit the other spouse equally (§1612(a)(5)). They also agree in writing that neither will claim spousal support if they divorce. Knowing §1612(c), they make sure Eva has her own attorney review the agreement. Because Eva was advised by independent counsel and the waiver is not unfair at enforcement, the waiver is enforceable under the statute.

Notable California Cases

In re Marriage of Pendleton & Fireman (2000) – California’s Supreme Court held that premarital waivers of spousal support are not automatically invalid. The court emphasized that couples may contract on the topics listed in §1612(a) as long as the agreement meets general fairness requirements. In Pendleton, the wife had waived all support but was represented by counsel, so the waiver was upheld under the applicable enforceability tests.
In re Marriage of Howell (2011) – The appellate court ruled that the 2002 amendment to §1612(c) (which imposes conditions on spousal support waivers) did not apply retroactively. Here, a 1999 agreement included a spousal support waiver. Because the agreement was signed before the amendment took effect, the waiver was found valid and enforceable under the law as it existed in 1999.
In re Marriage of Facter (2013) – The court found that a spousal support waiver was unconscionable in its circumstances and thus unenforceable under §1612(c). Nancy had far less education and no separate property while Jeffrey earned millions. Enforcing the waiver would have left her without adequate support. The court agreed with the trial court that the waiver was unconscionable, though it severed the invalid waiver and enforced the rest of the agreement.
In re Marriage of Shaban (2001) – This case involved a one-page Arabic document intended as a premarital agreement incorporating Islamic law. The court held there was no enforceable prenup because the writing did not clearly state any substantive terms. It noted that §1612(a)(6) allows a choice of law (the couple wanted Islamic law), but the contract itself must be clear. Here the document was too vague, so the court applied California law to divide the community property.
In re Marriage of Miotke (2019) – The court upheld a 1996 premarital agreement’s waiver of spousal support. In this case, the couple signed a detailed prenup just weeks before marriage, waiving support and setting custody terms for their child. A private judge and later the trial court found the agreement valid. The published opinion affirms that the waiver was enforceable under §1612 because the agreement complied with all legal requirements.

Full Text of California Family Code § 1612

(a) Parties to a premarital agreement may contract with respect to all of the following:

(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

(5) The ownership rights in and disposition of the death benefit from a life insurance policy.

(6) The choice of law governing the construction of the agreement.

(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.

(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.

(Amended by Stats. 2001, Ch. 286, Sec. 1. Effective January 1, 2002.)

*Nothing on this page should be considered legal advice. This is simply a summary of information found on the Internet. Use at your own risk. This information has not been evaluated by an attorney, and it may be incorrect or obsolete due to changes in the law.