Domestic Relations

CHAPTER 3. Husband and Wife; Contracts and Property Rights

Subchapter II. Premarital Agreements

§ 321. Definitions.

As used in this subchapter:

(1) “Premarital agreement” shall mean an agreement between prospective spouses made in contemplation of marriage, and which is effective upon marriage.

(2) “Property” shall mean an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.

70 Del. Laws, c. 462, §  2

§ 322. Formalities.

A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.

70 Del. Laws, c. 462, §  2

§ 323. Content.

(a) Parties to a premarital agreement may contract with respect to:

(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4) The modification or elimination of spousal support or alimony;

(5) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

(6) The ownership rights in and disposition of the death benefit from a life insurance policy;

(7) The choice of law governing the construction of the agreement; and

(8) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.

70 Del. Laws, c. 462, §  2

§ 324. Effect of marriage.

A premarital agreement becomes effective upon marriage.

70 Del. Laws, c. 462, §  2

§ 325. Amendment or revocation.

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. Such amended agreement or revocation is enforceable without consideration.

70 Del. Laws, c. 462, §  2

§ 326. Enforcement.

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) Such party did not execute the agreement voluntarily; or

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) Any issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

70 Del. Laws, c. 462, §  2

§ 327. Enforcement; void marriage.

If a new marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

70 Del. Laws, c. 462, §  2

§ 328. Limitation of actions.

Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the time that the parties to the agreement are married. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

70 Del. Laws, c. 462, §  2