What can a prenuptial agreement cover in Pennsylvania, and what can it not?

Last updated October 25, 2026.

A Pennsylvania premarital agreement can settle most of the money questions in a marriage: which property stays separate, including a business and its growth, how marital property and debts are divided, whether alimony, alimony pendente lite and counsel fees are paid or waived, and rights at death, such as the surviving spouse's elective share (23 Pa.C.S. 3501(a)(2) and 3105(c); 20 Pa.C.S. 2207). It cannot take child support, custody or visitation out of the court's hands: those terms can be modified by the court on a showing of changed circumstances (23 Pa.C.S. 3105(b)). And a court will not enforce the agreement if the spouse challenging it proves, by clear and convincing evidence, that it was not signed voluntarily, or that there was no fair disclosure, no written waiver of disclosure and no adequate knowledge of the other's finances (3106(a)).

This page is about what goes into an agreement. Whether a signed agreement will stand up later is covered in whether a prenup or postnup is enforceable. For the other family matters we handle in Media, see our family law page.

What can a Pennsylvania prenup cover, and what can it not?

Pennsylvania's statute does not list permitted subjects. The limits come from the Divorce Code and the estates code, which say what an agreement can exclude, which terms a court can still change and which rights a spouse may waive.

How is a prenup put together, step by step?

1. Start early. A premarital agreement is one made between prospective spouses "in contemplation of marriage" and effective upon marriage (3106(b)). Time to read and negotiate it matters, because a spouse who did not sign voluntarily can have it set aside (3106(a)(1)).
2. Exchange full financial disclosure. Each person lists property, debts and income, usually as schedules attached to the agreement. Missing disclosure is a ground to set the agreement aside when there was also no written waiver of further disclosure and no adequate knowledge of the other's finances (3106(a)(2)).
3. Decide the property terms. Name the assets each person keeps, say whether their growth during the marriage stays separate, and say how property bought during the marriage will be treated. These rules otherwise come from the statute, explained in what counts as marital property and what stays separate.
4. Decide the support terms. Choose whether alimony, alimony pendente lite and counsel fees are waived, capped or set, and whether those terms can be changed later (3105(c)).
5. Decide the estate terms. Say whether either spouse waives the elective share and how life insurance and retirement beneficiaries are handled.
6. Review separately and sign. The statute does not require each person to have a lawyer, but separate review helps show the agreement was voluntary and informed.
7. Carry it out. Update wills, trusts and beneficiary forms to match, because those documents are separate from the agreement.

If the marriage later ends in a Delaware County divorce, the agreement is listed on each spouse's inventory as the basis for any property claimed as non-marital (Pa.R.C.P. 1920.33(a)(3)(ii)) and the dispute goes first to a hearing officer, as described in what to expect in Delaware County family court.

What can it say about property, debts and a business?

Without an agreement, everything acquired during the marriage is presumed marital whatever the title (3501(b)), and the increase in value of pre-marriage property, gifts and inheritances during the marriage is marital too, measured to the separation date or the hearing date, whichever gives the smaller increase (3501(a.1)). An agreement can replace those defaults for the two of you, because property excluded by a valid agreement made before, during or after the marriage is not marital (3501(a)(2)).

That matters most to business owners. A company owned before the wedding stays separate under the statute, but its growth during the marriage is marital unless the agreement says otherwise. How a court treats a company without an agreement is covered in what happens to a family business in a Pennsylvania divorce. For marital property that is not excluded, the court divides it under the factors in 3502(a), including each spouse's liabilities (3502(a)(3)); see how property is divided in a Pennsylvania divorce. An agreement can also say which spouse is responsible for which debt as between the two of you, such as student loans or a mortgage on a pre-marriage home. Without such a term, debts are listed and divided as explained in how debts are divided in a Pennsylvania divorce.

What can it say about alimony and support between spouses?

An agreement can waive alimony, set an amount or a term, or limit it. Section 3105(c) makes a provision about alimony, alimony pendente lite, counsel fees or expenses not modifiable by the court unless the agreement specifically says it may be. That cuts both ways: if the agreement is enforceable, a waiver signed at 30 still binds at 55, and a fixed payment does not rise or fall with later income unless the agreement says so.

Without an agreement, the court weighs 17 factors in deciding alimony, including the property each spouse brought to the marriage and their expectancies and inheritances (23 Pa.C.S. 3701(b)); see how long alimony lasts in Pennsylvania. Married persons are liable to support each other according to their abilities (23 Pa.C.S. 4321(1)), which is why couples who want something different put it in writing.

What can it say about inheritance and estate rights?

Marriage gives a surviving spouse rights at death. If a married person domiciled in Pennsylvania dies, the surviving spouse may elect to take one-third of a defined list of property, including property passing by will or intestacy and certain property the decedent conveyed during the marriage (20 Pa.C.S. 2203(a)). Life insurance and broad-based employer retirement plans are generally outside that list (2203(b)). The right of election may be waived, wholly or partially, before or after marriage (20 Pa.C.S. 2207), so a premarital agreement can include that waiver, for example when each spouse wants to leave most of an estate to children from an earlier marriage.

Divorce also changes beneficiary designations. A designation of a spouse on life insurance, an annuity or a pension that was revocable becomes ineffective after a divorce, or after a death during the divorce once grounds are established, unless the designation was meant to survive, including by a written contract between the spouses (20 Pa.C.S. 6111.2). Our wills and estates page explains how we help put the estate documents in line with the agreement.

Why can't a prenup settle child support or custody?

Because those rights belong to the child. Parents are liable for the support of their unemancipated children 18 or younger (23 Pa.C.S. 4321(2)), and a provision of an agreement about child support, visitation or custody is subject to modification by the court on a showing of changed circumstances (3105(b)). In any custody order the court decides the child's best interest by considering all relevant factors, giving substantial weight to safety (23 Pa.C.S. 5328(a)). A couple can write down their intentions, but a court can change those terms when circumstances change. How the guideline works is explained in how child support is calculated in Pennsylvania.

What changes the answer?

• Whether it was signed before or during the marriage. Section 3106 applies by its terms to premarital agreements; agreements made during or after the marriage can still exclude property (3501(a)(2)) and are enforced like court orders (3105(a)).
• When it was signed. Section 3106 applies to premarital agreements signed on or after the 2004 amendment that added it took effect, according to the statute's note.
• Disclosure. Attached schedules, or an express written waiver, answer the main ground for a challenge (3106(a)(2)).
• A modification clause. Without one, property and alimony terms are fixed (3105(c)).
• Children. Child-related terms stay open to change (3105(b)).
• A death during the divorce. If a spouse dies after grounds are established but before the decree, the survivor has no intestate or elective share rights and the economic claims are decided under the Divorce Code (20 Pa.C.S. 2106(a)(2) and 2203(c); 23 Pa.C.S. 3323(d.1)).

For example: a business owner with children from a first marriage

Here is a hypothetical. A man in Media owns half of a family landscaping company and a condo, and he has two teenagers from his first marriage. His fiancee has student loans and a growing retirement account. Months before the wedding they exchange financial schedules and each has the draft reviewed separately.

Their agreement keeps the company, its growth and the condo as his separate property, keeps her retirement account and its growth as hers, and makes each responsible for their own pre-marriage debts. Each waives the elective share so that his estate can pass to his children. Alimony is limited to a set amount for a set term, with no modification clause. They also write in an expectation about supporting any future children, knowing a court can change it (3105(b)). If they later divorce, the excluded property never enters the marital pool under 3501(a)(2), and the alimony term stands as written unless one of them proves a 3106 ground. This example only illustrates the statute; it does not predict any result.

What mistakes do couples make about what a prenup can cover?

• Writing custody or child support terms as if they were final. A court can modify them on changed circumstances (3105(b)).
• Keeping a business separate but forgetting its growth. The increase during the marriage is marital unless the agreement excludes it (3501(a.1)).
• Waiving alimony without thinking about a modification clause. Without one, the court cannot revisit it (3105(c)).
• Skipping disclosure without a written waiver. That opens the door to the 3106(a)(2) challenge.
• Waiving the elective share but leaving old beneficiary forms in place. Insurance and employer plans are handled by the designations themselves and 6111.2, not by the waiver.
• Signing days before the wedding. Pressure and haste feed a voluntariness challenge (3106(a)(1)).

What should I do this week?

1. Write down what you own, what you owe and what you earn, with recent statements.
2. List what you want the agreement to cover: separate property, growth, a business, debts, alimony and estate rights.
3. Note any children from an earlier relationship and what you want for them at death.
4. Leave months, not days, before the wedding to negotiate and sign.
5. Plan to update your will and beneficiary forms after signing.
6. If you already have an agreement and are separating, find the signed original and every exhibit; see what to bring to a divorce consultation.

Frequently asked questions

Can a prenup waive alimony in Pennsylvania?

Yes. A provision about alimony, alimony pendente lite, counsel fees or expenses is not modifiable by the court unless the agreement says it may be (3105(c)). The agreement still has to meet the 3106 test to be enforced.

Can a prenup set child support?

It can address it, but the court can modify any child support term on changed circumstances (3105(b)), and parents remain liable to support their children (4321(2)).

Can a prenup decide custody?

No agreement takes custody out of the court's hands. Custody terms are modifiable (3105(b)), and the court decides custody on the child's best interest under 5328(a); see how judges decide custody after Kayden's Law.

Can we sign an agreement after the wedding?

Yes. Property excluded by a valid agreement made before, during or after the marriage is not marital (3501(a)(2)), and the agreement can be enforced with Divorce Code remedies (3105(a)).

Can I give up my right to inherit from my spouse?

The elective share can be waived wholly or partly, before or after marriage (20 Pa.C.S. 2207). For what a spouse receives when there is no will, see who inherits without a will in Pennsylvania.

Can an agreement cover a pension or 401(k)?

Yes, as property: a valid agreement can keep a plan, or part of it, out of the marital pool (3501(a)(2)). Without one, a defined benefit pension is split with a coverture fraction (3501(c)); see how pensions and retirement accounts are divided.

Does a prenup lower the cost of a divorce?

It can narrow the issues, because excluded property does not need to be valued or divided. Court fees still apply; see what a divorce costs in Delaware County.

Call Giribaldi Law at (610) 891-8303 or contact us online for a free consultation about a prenuptial or postnuptial agreement. Evening and weekend appointments are available.