What a Massachusetts Prenup Can and Cannot Cover

What can a Massachusetts prenup cover, and what can't it?

A Massachusetts prenup can set your own rules for property and spousal support. It can't decide anything about your children's support or custody. Under G.L. c. 209, section 25, couples may make a written contract before marriage covering property either person owns when they marry. Massachusetts courts have also enforced agreements that limit or waive alimony since Osborne v. Osborne (1981), which held that a prenup settling alimony or property rights on divorce isn't against public policy on its face.

Why the default rules make a prenup worth discussing

Without an agreement, a Massachusetts judge has broad discretion. G.L. c. 208, section 34 lets the court "assign to either husband or wife all or any part of the estate of the other," including retirement benefits, pensions and deferred compensation. The judge weighs factors such as the length of the marriage, each spouse's age, health, income, employability and needs, and each person's contributions, including as a homemaker.

In practice, property you owned before marriage, gifts and inheritances can all be part of the estate a judge considers. Inclusion isn't the same as an automatic split, because the judge still weighs the statutory factors. A prenup gives you and your partner a way to clarify those outcomes in advance instead of leaving them entirely to judicial discretion.

A short statute plus decades of case law

Massachusetts hasn't adopted the Uniform Premarital Agreement Act, so most of its prenup rules come from court decisions rather than a detailed statute (LegalClarity). You'll also see the terms "antenuptial agreement" and "prenuptial agreement" used interchangeably. Massachusetts statutes and court opinions usually say antenuptial, and the meaning is the same.

Agreements also can't contain terms that make divorce more financially attractive than staying married or that otherwise violate public policy (Divorce.law).

Can a prenup waive alimony in Massachusetts?

Yes. Massachusetts courts generally enforce alimony waivers, caps and duration limits in a valid prenup, but alimony terms face the closest scrutiny at divorce. In Austin v. Austin (2005), the Supreme Judicial Court enforced a mutual alimony waiver after a twelve-year marriage. It reversed a lower court that had awarded the wife alimony anyway.

The first look: fair and reasonable at signing

The bar to invalidate an agreement at signing is high. In DeMatteo v. DeMatteo (2002), the court said many valid agreements may be one-sided. An agreement fails this look only where the contesting party is "essentially stripped of substantially all marital interests." Austin added that an income disparity that could leave one spouse in a very different lifestyle isn't, by itself, a reason to find the agreement invalid.

The court also looks at whether:

• The contesting spouse was fully informed of the other's worth, or had independent knowledge of it
• The agreement contains a clear waiver of rights
• No one engaged in fraud or took unfair advantage of the relationship

The second look: conscionable at divorce

Even a valid agreement gets reviewed again when someone asks to enforce it. Under DeMatteo, a judge may not set aside a valid agreement unless, because of circumstances arising during the marriage, enforcement would leave the contesting spouse "without sufficient property, maintenance, or appropriate employment to support" themselves. The court gave examples: an unanticipated mental or physical decline, or inflation eroding agreed support so badly that it defeats what the couple intended.

Rudnick v. Rudnick (2023) shows how this plays out. The agreement was found fair and reasonable when signed. The wife waived alimony with the understanding that she would share in the appreciation of the marital homes. During the marriage, though, the homes were titled in ways that left her with no interest in them. The Appeals Court affirmed that enforcing the agreement at divorce would be unconscionable, so the agreement failed the second look.

The default alimony framework, for reference

The 2011 Alimony Reform Act sets durational limits for general term alimony when there's no agreement. Unless a court finds that deviation is required in the interests of justice:

The Act also limits rehabilitative alimony to no more than 5 years. These numbers show you the baseline your agreement departs from. They don't change the two-look test for prenups.

Drafting ideas to discuss with your attorneys

The case law points to terms that help an agreement stay workable as life changes:

• Support tied to circumstances. The Austin agreement provided support based on factors such as the length of the marriage, which helped it survive review.
• Cost-of-living adjustments and health insurance. In DeMatteo, the court noted that the support payments were adjusted for cost of living and that the agreement provided health insurance.
• Promised property interests that are actually carried out. Rudnick shows the risk when how property is titled doesn't match what the agreement contemplated.
• Shares stated as values, percentages or formulas. A formula keeps working as assets change, while a share tied to one named asset can lose value.

The exact waiver language should be drafted by a licensed Massachusetts attorney.

What does a Massachusetts prenup say about child support and custody?

A Massachusetts prenup can't predetermine child custody, parenting time or child support. Courts decide those issues based on the child's best interests when they arise, and a judge will refuse to enforce child-related terms even if both parents agreed to them (Divorce.law).

How the court can depart from the guidelines

Under the 2025 Massachusetts Child Support Guidelines, effective December 1, 2025, the court, or the parties by an agreement the court approves, may deviate from the guideline amount. That can include an order of $0. The court must enter written findings that state:

1. The amount the guidelines would produce
2. Why that amount would be unjust or inappropriate
3. The specific facts that justify departing from it
4. That the departure is consistent with the child's best interests

That's a review at the time support is set. It's very different from a prenup fixing support years in advance.

What you can address near children's issues

Your agreement can still handle financial matters that affect your family:

• Setting aside designated assets for children from a prior relationship
• Outlining how you expect to handle education costs financially
• Coordinating with your wills and trusts

Keep in mind that section 34 requires the court to consider the present and future needs of dependent children when dividing property. If a prenup includes a child support term, expect the court to decline to enforce that provision. Whether the rest of the agreement stands depends on its wording and the circumstances, so have an attorney review any language that touches on children.

How are business interests and inheritances handled in a Massachusetts prenup?

A prenup can identify a business, professional practice or inheritance, classify it as separate property, and set how any growth in value is treated. It works best when the wording is specific and both of you have full disclosure.

Business interests

Without an agreement, a judge can treat the full value of a business, including growth during the marriage, as part of the marital estate (LegalClarity). Common provisions include:

• Identification. Name the business and describe the ownership interest.
• Classification. State whether it remains separate property.
• Appreciation. Address whether growth in value, both passive (market-driven) and active (driven by either spouse's work), stays separate or is shared.
• Buyout. Provide a fixed payment to the non-owner spouse instead of an ownership stake.
• Valuation and disclosure. Agree on how the business will be valued and attach disclosure schedules.

> "For entrepreneurs and dedicated professionals, their work is often far more than a job; it is a profound expression of their purpose and identity." (Michael C. Cotugno, Esq., Managing Partner, Neptune Legal)

Business provisions are attorney work, and a valuation professional may be needed for closely held companies.

Example: Picture a founder whose startup is expected to grow during the marriage, and a partner who plans to support that growth at home and in the business. Together they might agree that the founder's equity stays separate, that a defined share of growth during the marriage is treated as marital, and that any payout is calculated with an agreed valuation method rather than a forced sale. Each partner's attorney would then turn that shared understanding into enforceable language.

Inheritances and gifts

Because section 34 reaches "all or any part of the estate" of either spouse, an inheritance you've received or expect to receive can be part of the divisible estate. A prenup can state how an inheritance, and any income or growth from it, will be treated if the marriage ends. That's separate from what happens at death, which your estate plan and any death-related waivers in the agreement address.

Death, retirement and estate coordination

Prenups can address rights at death as well as divorce. In Rostanzo v. Rostanzo (2009), the Appeals Court held that a widow who had signed a valid antenuptial agreement waived her statutory share of her husband's estate. Waivers like that should be written deliberately and coordinated with your wills and trusts.

Qualified retirement plans can carry their own spousal consent requirements, separate from your prenup. Ask your attorneys whether plan-specific forms need to be signed after the wedding.

How do debts work in a prenup in Massachusetts?

A prenup can assign responsibility between spouses for debts each person brings into the marriage and set whether future debts are joint or individual. Student loans, credit card balances and business debts can be designated as the sole obligation of the spouse who incurred them (LegalClarity).

What a debt clause can and can't do

Think of a debt clause as an agreement between the two of you about who's responsible. It doesn't rewrite your obligations to lenders. Recording also matters for third parties. Under G.L. c. 209, section 26, the property schedule must describe the property clearly enough to let a creditor of either spouse distinguish it from other property. If the contract isn't recorded as the statute requires, it "shall be void except as between the parties thereto and their heirs and personal representatives."

Practical items to talk through together

• Liabilities in your disclosure schedule: every loan, card and guarantee
• New debt: whether future borrowing, such as education loans, is joint or individual
• The marital home: who keeps it, how sale proceeds are shared, and how appreciation is treated
• Joint accounts: how you'll use them and who pays which bills during the marriage

Talking about debt openly gives you both financial clarity. It's a partnership conversation about how you'll run your household, not a defensive move.

How to make a Massachusetts prenup hold up: step-by-step checklist

Massachusetts requires a written contract signed before the wedding. Courts then look for voluntary signing, fair disclosure, fairness at signing and conscionability at enforcement. Independent counsel and notarization aren't legally required, but both are strong practical evidence that each of you understood what you signed.

Steps

1. Talk early and set a timeline. Courts have upheld agreements signed very close to the wedding. The Austin agreement was signed two days before, and the Rudnick agreement passed the first look after being signed the day before. Late signing still invites duress arguments, and signing several weeks or months ahead is the safer practice.
2. Exchange written schedules. Each of you lists assets, debts and income, with reasonable values.
3. Each choose your own attorney. Independent counsel for each partner is highly recommended for an enforceable prenup.
4. Draft specific terms. Cover alimony, property classification, business interests, inheritances, debts and the home, using the ideas above.
5. Sign voluntarily. Annex the schedules and have signatures notarized, which helps establish authenticity.
6. Record the agreement. Record it before the wedding or within 90 days after, in the registry of deeds the statute specifies and in every county where affected land is located.
7. Complete post-wedding forms. Sign any retirement plan consent forms after the wedding if your attorneys advise it.
8. Revisit after major changes. Review the agreement after a new child, a serious illness, a business sale or a large inheritance.

Final checklist

• Full written disclosure of assets, debts and income, attached to the agreement
• A separate attorney for each partner, chosen by that partner
• Enough time to review, ask questions and negotiate
• Specific wording on alimony, business interests, inheritances and debts
• A clear statement of the rights each of you is waiving
• No terms on child support, custody or personal conduct
• Signed, notarized and recorded within the section 26 window
• Coordinated with wills, trusts, beneficiary designations and retirement plans

What you can do yourselves, and what needs a lawyer

Routine steps like talking about goals, setting a timeline and gathering financial documents don't require a lawyer. The agreement itself should be drafted or reviewed by a licensed Massachusetts attorney, especially for:

• Alimony waivers
• Business valuations
• Trust and estate coordination
• Recording across counties
• Any question about whether a specific clause will be enforced

If you'd like a guided process, Neptune offers a lawyer-led online prenup in which each partner chooses their own independent attorney.