An Alabama prenuptial agreement is a written contract that two people sign before they marry. It sets out how each partner's assets and debts will be handled if the marriage ends, and it can limit what one spouse inherits from the other. Alabama law voids an agreement made because of a marriage unless it is in writing and signed.[1]
Before signing, each partner shares a full list of what they own and owe. You can start from our prenuptial agreement sample. Prenuptial agreements cannot settle child custody or child support.
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A prenup in Alabama is a contract made upon consideration of marriage, which means the wedding is the reason for the deal. Section 8-9-2(4) of the Ala. Code makes the agreement void unless it is in writing with the signature of the person it binds.[1] Section 43-8-72 lets either partner waive what they would receive from the other's estate, before or after marriage.[2]
The writing rule covers every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry.[1] An engagement by itself needs no written deal. A promise to hand over a house or money because of the marriage does.
Ala. Code § 30-4-9 also allows a husband and wife to make agreements with each other. It holds those agreements to the rules that apply between people in a confidential relationship.
An Alabama prenuptial agreement must be in writing and subscribed by the party to be charged, which is the person giving something up.[1] When the agreement waives inheritance rights, that person must sign after fair disclosure.[2] Neither section of the law requires a notary or witnesses.
In practice, valid agreements have three parts:
You can waive the protections state law gives a surviving spouse when the other partner dies. Section 43-8-72 names four of them: the right of election, the homestead allowance, exempt property, and the family allowance.[2] The waiver can cover any of them, wholly or partially, and can be made before or after marriage.[2]
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or a waiver signed by the party waiving after fair disclosure.
Unless the agreement says otherwise, a waiver of "all rights" in the property or estate of a present or prospective spouse is read broadly.[2] It gives up the elective share, homestead allowance, exempt property, and family allowance at death. It also gives up anything you would inherit if your partner dies without a will, and gifts in any will made prior to the waiver.[2]
A complete property settlement made in anticipation of separation or divorce has the same effect.[2] If you want to keep some of these protections, say so in the agreement.
Alabama courts enforce prenuptial agreements that are properly put in writing and pass a fairness test. The test comes from Barnhill v. Barnhill, a 1980 case decided by the state's Court of Civil Appeals. The person asking the court to enforce the agreement must prove one of two things.
Agreements need to meet only one of the two tests. In the law of contracts, marriage itself counts as consideration for a prenuptial agreement. A partner who had no independent legal advice and no clear view of the other's finances leaves the court to judge the deal on fairness alone.
Courts can refuse to enforce prenuptial agreements when the signing process or the terms were unfair. Most challenges rest on hidden finances, pressure to sign, or terms so one-sided that they are unconscionable. Each problem below can lead a court to set an agreement aside.
A single clause can also fail, even in prenups that are otherwise valid. Courts strike terms that encourage separation or illegal activity, or that are abusive. Lifestyle demands can cause the same problem, such as a rule to keep a certain weight or to do all the housework. So can promises that cannot be kept and wording too vague to apply.
Prenuptial agreements can keep what each partner owned before the wedding separate and set how assets and debts are divided in a divorce. They can also waive inheritance protections at death, wholly or partially.[2] They cannot decide child custody or child support, because a court decides those based on the best interests of the children.
To make an Alabama prenuptial agreement, share full financial information, agree on terms, put them in writing, and have both partners sign.[1][2] Start well before the wedding. An agreement presented days or hours before the ceremony invites a claim that one partner was pressured.
Yes. Section 8-9-2(4) asks for a written agreement with the signature of the person giving something up, and nothing in that law says an attorney must draft it.[1] Self-written agreements still have to pass the Barnhill fairness test. Advice from an independent attorney for each partner makes that test much easier to meet.
Couples who live in a neighboring state can start from that state's template instead: the Georgia, Florida, Tennessee, or Mississippi prenuptial agreement.
Unless noted otherwise, the sections below are from the Ala. Code (alison.legislature.state.al.us).