Important Notice: The enforceability of prenuptial agreements—including characterization of property, waivers, and restrictive covenants—varies materially by jurisdiction. This template is drafted to reflect common-law principles and the Uniform Premarital Agreement Act/Uniform Premarital and Marital Agreements Act (UPAA/UPMAA) framework often used in U.S. jurisdictions, and is intended for customization by counsel in the chosen governing law. Certain clauses (e.g., non-compete, waiver of earnings, elective share, and proxy/voting arrangements) may be limited or void under specific state or national laws (for example, non-competes are generally void in California). Independent legal and tax advice for each party is essential.
PRENUPTIAL AGREEMENT
This Prenuptial Agreement (the Agreement) is made as of [date] (the Execution Date), by and between [Full Name of Founder], residing at [address] (Founder), and [Full Name of Partner], residing at [address] (Spouse, and together with Founder, the Parties and each a Party), in contemplation of their legal marriage scheduled to occur on or about [wedding date] (the Marriage).
RECITALS
A. The Parties contemplate marriage and wish to fix and determine their respective rights in each other’s property, income, and liabilities, including but not limited to Founder’s existing and future interests in [Company legal name], a [state/country] [corporation/LLC/etc.] (the Company), and any related entities.
B. Each Party has had the opportunity to consult independent legal counsel of their own choosing and has made a full and fair disclosure of assets, liabilities, income, and material financial circumstances as set forth in Schedules A and B attached hereto (Financial Disclosures), or knowingly and expressly waives further disclosure to the extent permitted by applicable law.
C. The Parties intend that this Agreement be governed by and enforceable under [choose one: the laws of the State of [•], which has adopted the UPAA/UPMAA; or another specified jurisdiction], and that it be effective upon the solemnization of the Marriage.
AGREEMENT
1. Definitions.
1.1 Company Interests means any and all direct or indirect interests held or to be held by Founder in the Company or any affiliate or successor thereof, whether acquired before, during, or after the Marriage, including without limitation: issued and unissued equity (common or preferred), restricted stock, RSUs, options, warrants, SAFEs, convertible instruments, profits interests, carried interests, phantom equity, earnouts, rights under shareholder/operating agreements, voting rights, consent rights, management rights, distribution rights, appraisal rights, tag/drag rights, preemptive rights, and any replacements, substitutions, roll-overs, reclassifications, recapitalizations, or proceeds thereof.
1.2 Separate Property means, with respect to a Party, (a) all property that Party owned prior to the Marriage; (b) property acquired by that Party at any time by gift, devise, descent, or personal injury award (excluding wage replacement to the extent characterized as income); and (c) all Appreciation and Income (as defined below) on such property if and to the extent permitted by the governing law and as expressly provided herein.
1.3 Marital Property means all property jointly titled in the Parties’ names and any other property the Parties expressly designate as marital in a written instrument signed by both Parties after the Execution Date, except as otherwise stated herein.
1.4 Appreciation and Income means all increases in value, accretions, conversions, dividends, distributions, interest, and similar returns, cash or in-kind, and all proceeds of sale, redemption, monetization, liquidity events, financings, or other realizations.
1.5 Restrictive Covenant means any obligation of confidentiality, non-competition (to the extent permitted by law), non-solicitation, non-disparagement, and assignment of inventions as set forth in Section 7.
1.6 Repurchase/Trust Protections means the mechanisms described in Section 6 to prevent any change of control or impairment of the governance or operations of the Company by reason of any marital event.
2. Governing Law; Effective Date; Interpretation.
2.1 Governing Law. This Agreement shall be governed by the laws of [State/Country], without regard to conflict-of-law rules. The Parties intend compliance with the requirements of [UPAA/UPMAA or applicable statute], including voluntariness, fair and reasonable financial disclosure or waiver thereof, and conscionability at execution and enforcement.
2.2 Effective Date. This Agreement becomes effective upon the legal solemnization of the Marriage.
2.3 Construction. Headings are for convenience only. The invalidity or unenforceability of any provision shall not affect other provisions, which shall be enforced to the maximum extent permitted by law (see Section 11.5, Severability).
3. Financial Disclosure; Independent Counsel; Voluntariness.
3.1 Each Party acknowledges having received, at least [X] days prior to signing, a fair and reasonable disclosure of the other Party’s property, income, and obligations as summarized in Schedules A and B. Each Party acknowledges the opportunity to request additional information and has either received such information or knowingly waived it to the extent permitted by law.
3.2 Each Party acknowledges that they have been advised to consult, and has had meaningful opportunity to consult, independent counsel. Each Party enters into this Agreement freely, knowingly, and without duress, coercion, or undue influence.
3.3 Each Party acknowledges that no promise inconsistent with this Agreement induced execution.
4. Characterization of Property; Earnings; Debts.
4.1 Founder’s Company Interests are Separate Property. Founder’s Company Interests, whether acquired before or after the Marriage, and all Appreciation and Income thereon, shall be and remain Founder’s Separate Property. Without limiting the foregoing, all dividends, distributions, redemption proceeds, sale proceeds, carry, performance allocations, and any monetization or liquidity event proceeds traceable to the Company Interests shall be Founder’s Separate Property. To the fullest extent permitted by law, (i) any income or Appreciation from Company Interests shall not be recharacterized as Marital Property by reason of time, effort, or earnings during the Marriage, and (ii) any community or marital claims, reimbursement, or equitable distribution claims with respect to Company Interests are waived as provided in Section 9, except where such waiver is prohibited by law.
4.2 Other Separate Property. Each Party’s premarital property, gifts, devises, descents, and personal injury recoveries (except wage replacement treated as income) shall be that Party’s Separate Property, together with all Appreciation and Income thereon, to the extent permitted by law.
4.3 Marital Property. Property affirmatively titled in both Parties’ names, or expressly designated in a signed writing as Marital Property after the Execution Date, shall be Marital Property. Household furnishings used in common and ordinary joint bank accounts maintained for living expenses shall be Marital Property unless otherwise agreed in writing.
4.4 Earnings. The Parties agree that, to the extent permitted by governing law, each Party’s earnings during the Marriage shall be that Party’s Separate Property unless specifically deposited into a joint account designated as Marital Property. Absent such designation, earnings deposited into individually titled accounts shall not transmute their character solely by commingling with other Separate Property of that Party.
4.5 Commingling and Tracing. Commingling of Separate Property with Marital Property shall not, by itself, effect a transmutation of character; the Parties intend that title and intent govern. Each Party shall maintain reasonable records to enable tracing. If tracing is impracticable, the presumption shall follow title unless the governing law requires otherwise.
4.6 Debts. Each Party shall be individually responsible for debts incurred in that Party’s sole name before or during the Marriage unless jointly assumed in writing. No creditor shall be deemed a third-party beneficiary of this Agreement.
5. Control, Dividends, and Voting Rights.
5.1 Control Rights. All governance, voting, approval, consent, preemptive, and information rights in respect of the Company Interests shall belong exclusively to Founder. Spouse disclaims and waives any actual or purported right to participate in Company governance, management, or decision-making. Spouse shall not seek appointment as a director, manager, officer, or observer of the Company, nor exercise inspection rights, except as required by non-waivable law.
5.2 Irrevocable Proxy/Power of Attorney. To the fullest extent permitted by law, Spouse hereby grants Founder an irrevocable proxy and power of attorney, coupled with an interest, to vote or consent with respect to any Company Interests that Spouse may acquire or be awarded by court order, solely to preserve continuity of control and to implement this Agreement and the Shareholders’ Agreement (as defined below). This proxy shall automatically terminate upon transfer of such interests to Founder or the Company pursuant to Section 6.
5.3 Dividends and Distributions. Cash or in-kind dividends or distributions attributable to the Company Interests shall be paid to, and be the Separate Property of, Founder. If such amounts are inadvertently paid to Spouse, Spouse shall promptly endorse and deliver them to Founder.
5.4 Further Assurances; Joinders. Spouse shall execute any spousal consents, joinders, or acknowledgements required by the Company’s governing documents or any shareholders’, investors’, or unit holders’ agreement (collectively, the Shareholders’ Agreement) to confirm the Separate Property and control arrangements herein.
6. Divorce, Separation, and Change-of-Control Protections.
6.1 No Change of Control. The Parties intend that no marital event (including separation, divorce, annulment, or legal separation) shall cause any change of control or impairment of continuity in the Company’s governance or operations.
6.2 Mandatory Transfer; Repurchase Right. If any court order or law purports to award Spouse any legal or beneficial interest in the Company Interests, Spouse shall, and the Parties agree that Spouse must, immediately sell and transfer such interest to Founder (or, at Founder’s election, to the Company or its designee) pursuant to a repurchase right exercisable by Founder within [90] days of such award. The purchase price shall be determined as set forth on Schedule D (Repurchase Formula), which shall be consistent with, and not less favorable to Founder than, the applicable valuation and transfer restrictions in the Shareholders’ Agreement. Payment may be made in cash or by secured promissory note on market-consistent terms. Spouse shall deliver all necessary transfer instruments; specific performance and injunctive relief shall be available to enforce this provision.
6.3 Trust Segregation. Founder may at any time establish a trust or similar vehicle (a Founder Trust) to hold any Company Interests for estate planning and control purposes. Spouse consents to the transfer of Company Interests to a Founder Trust, provided such transfer complies with the Shareholders’ Agreement and is not a fraudulent transfer under applicable law. Spouse waives any claim to Company Interests transferred to a Founder Trust; provided, however, nothing herein waives non-waivable rights to equitable relief if a transfer is adjudicated fraudulent as to Spouse.
6.4 Tax Neutrality. The Parties acknowledge that the Repurchase/Trust Protections are intended for governance and control; no representation is made about tax neutrality. Each Party shall seek tax advice regarding Sections 6.2–6.3.
7. Confidentiality; Intellectual Property; Restrictive Covenants.
7.1 Confidentiality. Spouse shall maintain in strict confidence all non-public information regarding the Company, Founder’s business affairs, and all trade secrets (Confidential Information) learned by virtue of the relationship. Spouse shall not disclose or use Confidential Information except as required by law or with Founder’s written consent. This obligation is perpetual as to trade secrets and, as to other Confidential Information, shall last [five (5)] years after the latest of termination of the Marriage or final disposition of any divorce proceeding.
7.2 Assignment of Inventions/Work Product. To the extent Spouse creates any intellectual property using or derived from the Company’s Confidential Information, Spouse hereby assigns to the Company (or, if the Company disclaims, to Founder) all right, title, and interest therein, and shall execute confirmatory instruments.
7.3 Non-Competition (to the extent permitted by law). During the Marriage and for [12–24] months following a divorce or legal separation, Spouse shall not, within [defined geographic area or worldwide if appropriate for the Company’s market], directly or indirectly own, operate, or provide services to any business that is primarily engaged in [Company’s defined competitive field], except for passive investments of up to [2%] of a publicly traded company. If applicable law deems this Section 7.3 unenforceable, it shall be modified to the maximum extent permitted or severed without affecting the validity of the remaining provisions.
7.4 Non-Solicitation. During the Marriage and for [24–36] months after its termination, Spouse shall not directly or indirectly solicit, hire, or attempt to hire any employee, consultant, or contractor of the Company, nor solicit or divert any material customer or supplier of the Company, to the extent permitted by law.
7.5 Non-Disparagement. Each Party shall refrain from making public statements that materially disparage the other Party or the Company, except truthful testimony compelled by law.
8. Tax Matters; Tax-Related Disclosures.
8.1 Filing Status and Cooperation. The Parties may file joint or separate income tax returns as advised by their tax advisors. Each Party shall provide the other with tax information reasonably necessary to prepare joint returns, respond to tax inquiries, and comply with law. Any tax information so exchanged shall be Confidential Information under Section 7.1.
8.2 Taxes Attributable to Separate Property. Each Party shall be responsible for and indemnify the other against taxes (including estimated taxes), penalties, and interest attributable to that Party’s Separate Property, including without limitation income, gains, dividends, and distributions on Separate Property.
8.3 Founder-Specific Elections. Spouse agrees to cooperate with Founder in executing tax elections reasonably necessary to implement Founder’s equity strategy, including but not limited to Internal Revenue Code Section 83(b) elections, qualified small business stock (Section 1202) certifications, community-property consents, and related spousal consents, to the extent permitted by law and without creating any ownership interest in Company Interests.
8.4 Disclosure Boundaries. Nothing in this Agreement obligates a Party to disclose third-party confidential information, investor side letters, or competitively sensitive business plans, except as required by law or necessary for tax filings or to comply with due diligence for bona fide financing or M&A, in which case standard confidentiality safeguards shall apply.
9. Waivers and Releases (Subject to Non-Waivable Rights).
9.1 Equitable Distribution/Community Property Claims. To the maximum extent permitted by law, each Party waives and releases any claim against the other Party’s Separate Property—including Founder’s Company Interests—for equitable distribution, community property, quasi-community property, reimbursement, or similar claims arising from contributions during the Marriage, whether in the form of labor, services, or otherwise.
9.2 Elective Share/Forced Heirship. To the extent permitted by law, each Party waives any elective share, statutory share, or forced heirship rights in the other Party’s Separate Property. This Section does not limit a Party’s rights under a will, trust, beneficiary designation, or other voluntary estate plan.
9.3 Support; Child-Related Matters. Nothing herein waives or limits child support, child custody, or parenting rights, which are not subject to prenup waiver. Spousal support/alimony is [waived/limited/left to court determination] as set forth in Schedule C, subject to the governing law’s requirements for enforceability (e.g., not unconscionable at enforcement).
10. Consistency with Shareholders’ Agreement and Corporate Governance.
10.1 Consistency. The Parties intend consistency between this Agreement and the Shareholders’ Agreement, the Company’s charter/operating agreement, investor rights agreements, and any equity plan documents. In the event of a conflict solely concerning corporate governance or transfer restrictions, the Company’s governing documents and the Shareholders’ Agreement shall control, without modifying the property characterization between the Parties under this Agreement.
10.2 Spousal Consent. Spouse agrees to execute any spousal consent, acknowledgement of separate property, joinder, or similar instrument reasonably requested by the Company, Founder, or investors to give effect to this Agreement. Failure to provide such consent shall entitle Founder to injunctive relief and specific performance.
10.3 No Third-Party Beneficiaries. Except as expressly stated for the Company’s benefit in Sections 6–7 and 10, there are no third-party beneficiaries.
11. General Provisions.
11.1 Amendments; Waivers. Any amendment or waiver must be in a signed writing expressly referencing this Agreement. Course of dealing shall not amend this Agreement.
11.2 Notices. Notices under this Agreement shall be in writing and delivered by recognized courier, personal delivery, or email with confirmation, to the addresses set forth above or as updated in writing.
11.3 Dispute Resolution. Any dispute arising out of or relating to this Agreement shall be resolved by [binding arbitration under the rules of • seated in •], except that either Party may seek temporary or permanent injunctive relief or specific performance in a court of competent jurisdiction for breaches of Sections 5–7 and 10. Judgment on an arbitration award may be entered in any court having jurisdiction.
11.4 Timing of Execution. The Parties state that this Agreement has been executed at least [X] days prior to the Marriage. If applicable law imposes a minimum period for review (e.g., seven days), the Parties confirm compliance.
11.5 Severability; Blue Pencil. If any provision is held invalid or unenforceable, it shall be narrowed or reformed to the minimum extent necessary to be enforceable, and the remainder shall continue in full force. In particular, any Restrictive Covenant shall be subject to judicial modification to the extent permitted by law.
11.6 Entire Agreement; Counterparts. This Agreement, including Schedules A–D, constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior understandings. It may be executed in counterparts and by electronic signatures, each of which shall be deemed an original.
SIGNATURES
Founder: ___________________________ Date: __________
Name: [Founder]
Spouse: ____________________________ Date: __________
Name: [Spouse]
Acknowledged before me this ____ day of ________, 20__.
Notary Public: ______________________
My Commission Expires: _____________
SCHEDULE A: Founder’s Financial Disclosure
- Description of all assets, liabilities, and material income, including:
- Company Interests: cap table, class of securities, vesting schedules, option grants, RSUs, warrants, SAFEs/convertibles, secondary sales, side letters materially affecting value, and any transfer restrictions.
- Other investments, bank/brokerage accounts, retirement accounts, real property, interests in other entities, IP, and contingent interests.
- Material liabilities, guarantees, tax liabilities, and litigation/claims.
SCHEDULE B: Spouse’s Financial Disclosure
- Description of all assets, liabilities, and material income, including any business interests, real property, investments, retirement accounts, and debts.
SCHEDULE C: Spousal Support/Alimony (if applicable)
- [Option 1: Mutual waiver of spousal support, subject to court review for unconscionability at enforcement and applicable statutory requirements.]
- [Option 2: Predetermined support formula/cap with cost-of-living adjustments, subject to enforceability.]
SCHEDULE D: Repurchase Formula and Terms
- Repurchase Trigger: Any award or vesting of Company Interests in Spouse by court order or operation of law.
- Price: The lesser of (a) Fair Market Value determined by an independent valuation firm acceptable to the Company and Founder, applying minority and transferability discounts required under the Shareholders’ Agreement; or (b) the price or formula applicable to involuntary transfers under the Shareholders’ Agreement.
- Payment: Cash at closing or secured note with [market rate] interest, [36–60]-month amortization, optional prepayment without penalty.
- Closing Mechanics: Escrow agent, delivery of duly endorsed certificates or electronic transfer, representations limited to title and authority; customary transfer tax allocation.
- Remedies: Specific performance, injunctive relief, and recovery of reasonable attorneys’ fees and costs.
Notes on Enforceability and Legal Basis (for counsel to tailor; not part of the Agreement):
- UPAA/UPMAA Principles: Most U.S. jurisdictions require that (i) the agreement be in writing and signed; (ii) it be voluntary; (iii) there be fair and reasonable financial disclosure or valid waiver; and (iv) the agreement not be unconscionable at execution or enforcement. Independent counsel and execution well in advance of marriage are strongly recommended.
- Characterization of Income/Appreciation: Some jurisdictions allow parties to designate income and appreciation on separate property as separate by agreement; others impose limits. Counsel should confirm local law and consider explicit tracing and record-keeping provisions.
- Non-Compete/Restrictive Covenants: Enforceability depends on jurisdiction, scope, duration, and legitimate business interests. Consider narrowing to non-solicitation and confidentiality where non-compete is restricted or prohibited.
- Elective Share and Spousal Rights: Waivers of elective share, community property rights, or homestead rights are often permissible if statutory waiver formalities are met. Confirm local requirements.
- Proxy/Voting and Mandatory Transfers: Ensure alignment with corporate law and the Shareholders’ Agreement (e.g., Delaware General Corporation Law or applicable LLC Act) and include spousal joinders/consents in corporate documents.
- Fraudulent Transfer Considerations: Transfers to trusts must comply with fraudulent transfer statutes; maintain solvency and ordinary-course planning to mitigate risk.
This template is intended to be finalized by qualified counsel in the selected governing jurisdiction and conformed to the Company’s actual capitalization and shareholder arrangements.
