What Happens If You Don’t Get a Prenup in California?
/If you get married in California without a premarital agreement, the law already has one for you.
Under California’s Family Code, there are default rules that govern how your income, assets, debts, and even spousal support are handled if your marriage ends in divorce—or if you pass away without an estate plan. These are often referred to as California’s default prenup.
For some couples, the default rules are just fine. For others, learning the default helps clarify what they’d like to change through a formal premarital agreement. Either way, understanding what the law says by default is an essential first step.
Community Property: You’re in It Together
When you get married, you become part of what the law calls “the community.” That means:
Earnings during marriage are shared equally—even if the income is deposited in an account under one person’s name.
Assets acquired during marriage are presumed to be community property.
Employment benefits, like stock options, retirement contributions, and bonuses, are community property if earned during marriage, even if they vest later.
Separate Property: What’s Yours Stays Yours (Mostly)
Some things remain separate property by default, such as:
Property owned before marriage
Gifts or inheritances received during the marriage
Income earned after separation
But it’s not automatic. If there’s a dispute, you’ll need clear records showing where the asset came from and how it was kept separate. Also, if your efforts during the marriage increase the value of separate property (like managing a business), some of that growth could become community property.
Homes, Businesses, and Mixed Assets
Using separate property (like an inheritance) to buy a home in joint names? You may only be entitled to reimbursement of your contribution—not a share of the home’s appreciation.
A business you owned before marriage stays separate, but if it increases in value during the marriage, the community may gain an interest.
If you inherit a home and keep it in your name, it remains separate—but using community funds to pay the mortgage may give the community a share of the appreciation.
Debts: Not Always Personal
Debts from before marriage remain your responsibility—unless community funds are used to pay them.
Debts during marriage are generally shared, even if one spouse doesn’t agree with how the money was spent—unless the debt was clearly unrelated to the marriage.
Divorce: Splitting Property and Debts
By default:
Community assets and debts are divided equally, though the court can divide them through sales or offsets (e.g., one person gets the house, the other gets an investment account of equal value).
A spouse who remains in the home after separation may owe “rent” to the community.
Spouses who pay community debts after separation are generally reimbursed—unless the payments replace support.
Spousal Support: Not Automatic, But Possible
Each spouse has a duty to support the other. If one person earns significantly more, spousal support may be ordered. While premarital agreements can limit or waive support, a court can still order support if it finds that enforcing the waiver would be unconscionable—a legal standard meaning “grossly unfair.”
Estate Planning: The Law Has a Plan (Whether You Like It or Not)
If you pass away without a will or trust:
Your share of community property goes to your spouse.
Your separate property is divided between your spouse and other family members, depending on who survives you.
A premarital agreement can change those default inheritance rules too—either to give more or less to a surviving spouse.
So, Should You Get a Premarital Agreement?
Maybe. Maybe not.
Whether a premarital agreement makes sense depends on many things—one of which is how well California’s default rules align with your goals. Some couples choose to stick with the default but put it in writing to clarify expectations and reduce future conflict. Others want to make specific changes.
At a minimum, I recommend having the conversation. Understanding the default rules is the best place to start.