“What am I not thinking about?”

Someone asked us this before signing a prenup. Three things were on her list: an inheritance coming to her, an apartment she owns and is about to sell into a house in both names, and a large gift from her parents that she wants back if the marriage ends. All three are the right things to worry about. All three have a trap that only the agreement can close — and the list of what is missing is longer than the list she brought.

The short version5 points · tap one to jump to it

1. An inheritance you will receive during the marriage — In most states an inheritance is separate property the moment it lands, even with no prenup at all.
2. Selling the place you own into a house in both names
3. The money your parents are giving you both — You want it back if the marriage ends.
4. What is usually missing from the list — People arrive with the assets they can see.
5. The part that actually decides whether any of it holds — Prenups rarely fail on what they say.

In this subject 6

1. An inheritance you will receive during the marriage

In most states an inheritance is separate property the moment it lands, even with no prenup at all. In fourteen states a court can divide it anyway. Everywhere else, it stops being separate in four ordinary ways, and none of them feels like a decision at the time.

• Mixing. It goes into the joint account “for now.” Later, proving which dollars were yours is your job, and bank records do not go back forever.
• Retitling. A parent’s house is put into both names, or refinanced into both names. In several states that alone transmutes it, and you are left arguing it was not a gift.
• Growth and income. Protecting the asset does not automatically protect what it earns. In Texas, Idaho and Louisiana, income from separate property is community property by default.
• Spending it on the family. Inherited money used to pay down the joint mortgage is usually treated as a contribution to the marriage unless the agreement says it comes back.

Two things almost nobody is told. A prenup is also where a spouse gives up the right to claim against the other’s estate at death — the elective share — and that is usually what your parents’ estate planner actually cares about. And a trust does what a prenup cannot. If your parents have not already done it, ask whether your inheritance can come through a discretionary trust rather than outright. The two together are far stronger than either alone.

More: What a prenup can and cannot waive at death.

2. Selling the place you own into a house in both names

This is the expensive one, and it gets the least thought because it feels like an administrative step. Separate money put into a jointly titled home is, in most states, presumed to be a gift to the marriage. The deed says both names. The down payment came from one person. Without an agreement, the default answer in many states is that all of it is marital.

So the agreement has to say the down payment comes back off the top. Then it has to answer the question nobody asks first: do you get your dollars back, or your share back?

The same $200,000, two ways

You put $200,000 down on an $800,000 house — a quarter of the price. Here is what each version returns at different values.

Both versions are defensible. They are not the same, and the gap only grows. Decide which one you mean and write it down in those words.

The rest of the house questions the agreement should answer:

• What happens if you refinance, or sell and roll the money into the next house. Protection that does not survive a move has an expiry date on it.
• Marital money paying the mortgage. Every payment made from income earned during the marriage builds equity that is usually marital, however the deposit was funded. Kentucky puts a formula on it: nonmarital share = (nonmarital contribution ÷ total contribution) × equity at division.
• Who keeps it, at what price. Who has first option to buy the other out, how the value is set, who pays the mortgage, taxes and insurance in the meantime.

Brandenburg v. Brandenburg, 617 S.W.2d 871 (Ky. Ct. App. 1981) · the formula

3. The money your parents are giving you both

You want it back if the marriage ends. That is reasonable, and the prenup is not by itself how you get it. A prenup binds the two of you. It does not make your parents a creditor.

• If they want it back in every scenario — divorce, death, bankruptcy, a judgment against either of you — it is a loan, and it has to look like one: a signed promissory note and a mortgage or deed of trust recorded against the house. A recorded lien follows the property. A promise between spouses does not.
• If it is a gift, the agreement should say whose. A check made out to both of you, or deposited into a joint account, is the fact pattern that turns it into a gift to both. A gift to you alone, documented as such at the time, is the version a prenup can protect.
• A loan nobody ever collects on looks like a gift. If it is a loan, it needs a payment schedule that somebody actually follows.
• Their side has paperwork too. A large gift usually means a federal gift tax return for the giver even when no tax is due. That is their advisor’s job, not yours, but it is worth raising before the money moves.

What is usually missing from the list

People arrive with the assets they can see. These are the ones that turn up later.

• Growth and income on everything separate, not just the house.
• Retirement accounts, equity and options that vest across the wedding date. A grant made before the marriage that vests during it is the classic split-the-difference fight.
• Debt. Student loans, a credit card, a business guarantee. Whose it is, and who is exposed to it.
• Spousal support. The most contested clause there is. Some states will not enforce a complete waiver, and a formula tends to survive where a zero does not.
• Death, not only divorce. The elective share, life insurance backing any promise made, and beneficiary designations — which override a will and are forgotten more often than anything else on this page. There is a whole page on this.
• Moving. The agreement should name the law that governs it and be built to survive in the states you might realistically live in.
• A sunset clause. Tempting, and double-edged: it removes the protection at exactly the point the assets are largest.
• The two things it cannot do. Custody and child support belong to the court, whatever the document says.
• Record-keeping. The agreement is the rule; the paper trail is the proof. Separate money stays in separate accounts, and the statements get kept.

The part that actually decides whether any of it holds

Prenups rarely fail on what they say. They fail on how they were signed. Full schedules of what each of you owns and owes, attached to the agreement. Separate lawyers, or at minimum a real opportunity to get one. And weeks of daylight before the wedding — California and Minnesota put a waiting period in the statute; everywhere else, timing is evidence.

The 2012 uniform act, where states have adopted it, makes this concrete: an agreement is unenforceable if a party did not have access to independent legal representation, and if that party was unrepresented, the document must carry a plain-language explanation of the rights being given up.

Uniform Premarital and Marital Agreements Act §9, as enacted at C.R.S. §14-2-309.

Keep reading

• What a prenup needs to cover — and what your state already protects, all fifty
• The prenup and death — the elective share, and the one thing a prenup cannot waive
• Already married, already mixed — what a postnup can still fix
• The prenup checklist — twelve months out to after the wedding
• Annotated prenup clauses

General information about how these rules work, not advice about your agreement. State law differs and changes. Checked 21 September 2026. If something here is out of date, tell us.