California Prenuptial Agreements for Same-Sex Couples

You and your partner have been together since 2007. You bought a home in 2010, and one of you put $200,000 into the down payment. In 2011, you registered as domestic partners. In 2016, you started a business. Now you are engaged.

Each asset came from a different stage of your relationship, and each stage can be treated differently. Your prenup needs to reflect what you want for each one.

California Prenuptial Agreements for Same-Sex Couples Follow the Same Law

California does not have separate prenup rules for same-sex couples. Every couple follows the Uniform Premarital Agreement Act, the state law that governs prenups. The rules for requirements, signing, and enforcing a prenup are the same for everyone.

What differs is the history you bring to the wedding.

California allowed same-sex couples to marry for several months in 2008, after the California Supreme Court decided In re Marriage Cases (2008) 43 Cal.4th 757. That November, voters passed Proposition 8, which stopped new same-sex marriages. Marriages resumed statewide in June 2013.

Many long-term couples spent years together before marriage was an option. Some registered as domestic partners. Some signed agreements. Many simply shared a home and their finances.

Those years shape what you own today, both as an individual and as a couple, and what your prenup has to address.

The Default Rules a Prenup Can Change

California is a community property state. Under Family Code § 760, each spouse generally owns equally any property they earn or acquire during marriage. Under Family Code § 770, property owned before marriage, plus most gifts and inheritances, generally stays separate.

Without a valid prenup, these default rules generally apply. A prenup can change them for property you own now and property you acquire later under Family Code § 1612.

What You Should Know About Same-Sex Prenups

Your prenup has to fit where your relationship stands today. 

For same-sex couples with a longer relationship history, start with these three things:

• Earlier agreements you already signed, including cohabitation agreements
• The dates you registered, married, and acquired each asset
• Your current status, such as still registered or already dissolved

Earlier Agreements Do Not Cancel Themselves at the Wedding

Over a long relationship, you may have signed more than one financial agreement. Examples include a cohabitation agreement, a domestic partnership agreement, or a settlement from an earlier partnership.

Do not assume your wedding cancels them.

In Estate of Wilson, a 2012 decision from California’s First District Court of Appeal, two men signed a domestic partnership agreement in 2006. They each had their own lawyer. The agreement required any change or termination to be in writing and signed.

They registered as domestic partners and later married in 2008. They never signed a new agreement.

After one of them died, the other asked for a share of the estate as his surviving spouse. The agreement said each partner gave up any claim to the other’s estate. The court held that the marriage did not cancel that waiver, so the surviving spouse received no share of the estate.

He lost his claim because of what they signed. Without that agreement, he may have received a share, since California treated registered domestic partners much like spouses by then.

The ruling has limits. The court noted that an agreement can state that it ends when the couple marries. An agreement can also end at death or when another event occurs, so the wording matters.

The case involved an inheritance claim, not a divorce. The main lesson is that marriage does not automatically cancel a domestic partnership agreement. Whether your earlier agreement still applies depends on its terms and enforceability.

Before you sign a prenup, ask these questions:

• Does an earlier agreement exist, and when does it take effect or end?
• Did you ever sign a written change to it?
• Did a dissolution or settlement already change any of its terms?
• Does your new prenup need to replace it, change part of it, or work alongside it?

Your new prenup should say in writing what happens to each earlier agreement.

Even Spoken or Implied Agreements May Matter in Your Case

Living together does not turn your property into community property. That is true even after many years.

Still, in some cases a court will enforce an agreement the couple never wrote down. The California Supreme Court said so in Marvin v. Marvin (1976) 18 Cal.3d 660. A woman who had lived with her partner for years said they had agreed, out loud, to share what they earned and owned.

The court held that unmarried partners can make enforceable agreements about money and property even without written and signed agreements. It allowed her claim to go forward. It did not decide that she proved the agreement or that she deserved half the property.

Without an express agreement, a court can also look at how you acted. In the right case, pooling income, sharing ownership, or building a business together may support an implied agreement.

Take the home you bought in 2010. One of you paid $200,000 toward the down payment, and both of you may have paid the mortgage for years. If you also planned to share the home or sell it together, those plans and payments can show what you agreed, even though you were not yet married or registered.

Before you draft a prenup, gather every document that shows who paid what and what you agreed to. If you want to settle claims from your years of living together, say so directly in the prenup.

Your Dates Show When Property Rights Began

Registered domestic partners generally have the same state-law rights and duties as spouses. For community property, California generally uses your registration date the way it uses a marriage date. It looks at what you earn and acquire from that date until you separate.

That rule applies to partners who registered with the California Secretary of State. A local registration or an employer’s domestic partner listing does not necessarily create the same rights.

Your registration date is the dividing line. Years before it work differently. Living together before then did not create community property, and marrying now does not turn those years into years of marriage. Your ownership papers and any agreements from those years may still create rights your prenup needs to address.

If community funds earned after registration paid down the home’s mortgage principal, the domestic partnership may have acquired a community interest in the property’s equity and appreciation. The exact share depends on the payment history and the property’s value.

One more date can matter. If you registered as domestic partners before January 1, 2005, a special rule may apply. Under Family Code § 297.5, an agreement between you and your partner can be enforced like a prenup, even if its effective date is not the date of a marriage. 

It counts only if you intended it to follow California’s prenup law, it otherwise met the prenup requirements, and it was fully signed and in force by June 30, 2005.

Your Current Status Changes What You Bring Into Marriage

If you are still registered when you marry, your domestic partnership and your marriage run side by side. Marrying does not end your registration, so you hold both statuses at the same time. Under Family Code § 299, couples who are both married and registered can end both in one court case. Your prenup may need to change rights you already hold as domestic partners.

If you already own community property as domestic partners, the prenup should identify those existing interests and rights first. From there, you can decide what you want to keep as shared property, what you want to change, and what rules should apply to property you acquire after marriage.

Registered domestic partners owe each other the same duty of fair dealing as married spouses. Getting married does not erase the property rights you already have as partners. Your attorney should distinguish the property rights you already hold as domestic partners from the rules you want to apply after the wedding.

If your domestic partnership has already ended, start with what the ending left behind.

Start with the papers from that ending. A judgment or settlement shows what each of you kept, what you gave up, and who still owes payments. You bring all of it into the marriage, and your prenup needs to address each asset and debt. Suppose the judgment awarded you the business. The prenup should say how that business is treated once you marry.

How Your Relationship History Changes the Prenup

Your situation before marriage	What generally happens	What your prenup needs to consider
You lived together but never registered	Cohabitation alone does not create community property. Ownership, contributions, and agreements may still create rights.	Identify what each of you already owns, any cohabitation agreements or other claims, and how you want that property treated after marriage.
You are still registered domestic partners	California community property rights may already date back to your registration. Marriage does not automatically end the domestic partnership.	Account for property rights that already exist and decide what rules you want to apply after marriage.
You ended the domestic partnership before marrying	The termination, settlement, or judgment may have already divided property and created ongoing obligations.	Start with what each of you owns or owes after the partnership ended, then decide how those assets and obligations will be treated during marriage.
You marry without a prenup	California’s default marital property rules generally apply going forward, along with any rights or agreements that already exist.	You accept the applicable default rules instead of choosing different terms for your marriage.

What Should a Same-Sex Prenup Cover?

Once you know what property rights and agreements you already have, the next step is deciding what you want the prenup to do with them.

Start with the property you are bringing into the marriage. That may include a home or other real estate, business interests, investment and retirement accounts, stock or other equity compensation, valuable personal property, and assets you kept after an earlier domestic partnership ended. The prenup should state how you want those existing interests treated once you marry.

Then look at any agreements already in place. If you signed a cohabitation agreement, domestic partnership agreement, property agreement, or settlement, decide whether the prenup will keep those terms, change them, replace them, or work alongside them.

Finally, decide which California default property rules you want to keep and which you want to change. That can include how you treat earnings, future business growth, contributions to separately owned property, and assets you acquire together after marriage.

For property that crosses more than one stage of your relationship, avoid forcing it into a simple “before marriage” or “after marriage” label. You may have purchased a home while cohabiting, paid it down while you were domestic partners, and improved it after marriage. Your prenup should reflect that history and clarify how you want to handle future ownership and contributions.

What a Prenup Cannot Decide for Your Family

A prenup cannot decide child custody or limit child support. A court decides custody based on the child’s best interests at the time of the dispute. California law protects a child’s right to support regardless of what parents agree to before marriage.

If you are building your family through assisted reproduction, surrogacy, or adoption, you will need the right parentage agreements and court steps. A prenup does not decide who the legal parents are.

A prenup can address some money questions, such as how you share fertility, surrogacy, or adoption costs. It cannot make legal parentage depend on who paid.

Spousal support waivers need special care. A waiver is not enforceable if the person giving up support did not have their own lawyer when signing. A court can also refuse it if it is unconscionable, meaning grossly unfair, at the time of enforcement.

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