Massachusetts: C-
Statutes
Massachusetts General Laws Chapter 209, Section 25
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names are split 50/50 as marital property.
Unconscionability at Execution AND Enforcement
Massachusetts courts employ a unique "two-look" test. Agreements must be fair and reasonable at execution (the "first look") AND conscionable at enforcement (the "second look"). Changed circumstances during marriage can invalidate a prenup if it would leave one party without “sufficient” support.
Fair and Reasonable Standard
Under the "first look," an agreement is invalid if it essentially vitiates the status of marriage or strips a spouse of substantially all marital interests. This means a court is more likely to reject or modify a prenup that a state which uses the “unconscionability” standard.
Spousal Support Public Assistance Minimum
Courts review spousal support waivers again at enforcement (divorce), rejecting waivers if it would leave one spouse unable to support themselves due to changed circumstances. Minimum alimony is above public assistance eligibility, with no bright-line test.
Timing
We recommend signing the prenup 30-60 days before with 2-3 weeks review time to reduce the risk of challenge. Even better, sign the prenup before proposing, to keep legal matters separate from wedding planning and make informed engagement decisions.
Independent Counsel
Not required by law, but dramatically strengthens enforceability. Parties with independent counsel are presumed to have understood terms, making claims of unfairness nearly impossible.
Financial Disclosure
“Full disclosure” of assets and liabilities required, and cannot be waived. Include all assets and liabilities over $1,000. This standard is higher than the more reasonable “fair disclosure” requirement in other states.
Moderate Burden to Challenge
Massachusetts courts review enforceability under multiple standards: fairness at execution, conscionability at enforcement, proper disclosure, voluntariness, and whether terms vitiate marriage. Courts retain broad authority to invalidate "especially harsh" agreements. The challenging party bears the burden of proof.
Child Support
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
Massachusetts courts frequently modify or reject prenuptial agreements.
Rudnick v. Rudnick, 102 Mass. App. Ct. 467 (2023)
After a 27-year marriage, the Appeals Court invalidated the prenuptial agreement under the "second look" test because the husband deliberately failed to take title to properties as tenants in common as contemplated in the agreement, leaving the 86-year-old ailing wife stripped of substantially all marital interests without the anticipated real estate share or alimony.
Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33 (2015)
The Appeals Court held the prenuptial agreement unconscionable at divorce despite being valid at execution, where the wife was left with a severely deteriorated marital home worth less than its $256,000 mortgage (needing $300,000 in repairs) while earning $300/week, as the husband moved to his $1.7 million pre-marital property after nearly 20 years of marriage.
Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015)
The Appeals Court found the prenuptial agreement invalid at execution under the "first look" test where the agreement was signed days before the wedding when the wife was seven months pregnant, the husband (with over $7 million in assets) failed to fully disclose his finances, provided only $5,000 per year of marriage as alimony, and refused all of the wife's proposed modifications during one-sided negotiations.
Austin v. Austin, 445 Mass. 601 (2005)
The Supreme Judicial Court reversed lower courts and enforced a prenuptial agreement with complete alimony waivers signed two days before marriage, holding that the wife (awarded the $1.275 million marital home and $525,000 cash) was not stripped of substantially all marital interests, where both parties were represented by counsel, the wife's attorney drafted the agreement, and she was fully informed of her rights despite the husband having approximately $1 million in assets compared to her $35,000.
DeMatteo v. DeMatteo, 436 Mass. 18 (2002)
The Supreme Judicial Court established the landmark "two-look" test framework and enforced a prenuptial agreement where the husband's net worth was $108-133 million and the wife earned $25,000 as a secretary, holding that the agreement was fair and reasonable at both execution and enforcement because the wife received the marital home, transportation, $25,000 annual support until death or remarriage, and health insurance—leaving her in a better position than before marriage despite the vast wealth disparity.