Delaware Prenuptial Agreement Laws: Requirements and Enforceability

Yes. Delaware enforces prenuptial agreements under 13 Del. C. §§ 321 to 328, the "Premarital Agreements" subchapter of the Delaware Code. The agreement must be in writing and signed by both parties (§ 322), and under § 326(a) it is not enforceable if the challenging party proves it was signed involuntarily, or that it was unconscionable when signed and the challenging party also lacked disclosure, a written waiver of disclosure, and adequate knowledge of the other party's finances.

Information last verified on 2026-10-08. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers premarital (prenuptial) agreements under 13 Del. C. §§ 321 to 328, the Family Court's jurisdiction over spousal agreements under 13 Del. C. § 507(a), and property division under 13 Del. C. § 1513(a). It does not cover Delaware case law on prenuptial or postnuptial agreements, tax or estate-planning effects, how to draft an agreement, or other states' law. For divorce, see Delaware divorce laws.

Which law governs prenups in Delaware

Delaware's prenup rules are in Title 13, chapter 3, subchapter II, headed "Premarital Agreements" (§§ 321 to 328). The subchapter covers definitions, formalities, the content of agreements, when they take effect, amendment and revocation, enforcement, void marriages and limitation periods.

Section 321 defines the term: "'Premarital agreement' shall mean an agreement between prospective spouses made in contemplation of marriage, and which is effective upon marriage."

This article does not compare Delaware's subchapter with the Uniform Premarital Agreement Act or with other states' versions; it describes only what the Delaware sections say.

Formal requirements for a Delaware prenup

Writing and signatures. Section 322 provides: "A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration."

When it takes effect. Under § 324, "A premarital agreement becomes effective upon marriage."

No notary, witness, lawyer or waiting period in the statute. Sections 321 to 328 contain no notarization or witness requirement, no requirement that each party have independent counsel, and no waiting period between receiving the agreement and signing it.

When a Delaware prenup is not enforceable

Section 326(a) sets out two defenses. The burden is on "the party against whom enforcement is sought."

1. Involuntariness. The agreement is not enforceable if that party proves "Such party did not execute the agreement voluntarily" (§ 326(a)(1)).

2. Unconscionability plus lack of disclosure. This defense has several parts, and all of them must be shown. Section 326(a)(2) requires proof that "The agreement was unconscionable when it was executed and, before execution of the agreement, that party:"

Two features follow from that wording. Unconscionability is measured "when it was executed," not at the time of divorce. And an agreement that was unconscionable when signed is not defeated under this paragraph unless the challenging party also shows all three disclosure elements.

Who decides. Section 326(b) provides: "Any issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law."

Spousal support and alimony waivers

Section 323(a)(4) allows the parties to contract on the modification or elimination of spousal support or alimony. Sections 321 to 328 contain no provision letting a court override a support waiver to keep a spouse off public assistance.

For how alimony is decided without an agreement, see Delaware alimony laws.

What a prenup cannot do in Delaware

Section 323(b) protects children's support: "The right of a child to support may not be adversely affected by a premarital agreement." The subchapter's text does not mention child custody. For support rules, see Delaware child support laws.

Changing or revoking a prenup

Under § 325, "After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties." The amendment or revocation is enforceable without consideration.

Section 328 tolls limitation periods during the marriage: "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." The equitable defenses of laches and estoppel remain available.

If the marriage is void

Under § 327, if a 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.

Postnuptial and separation agreements in Delaware

The premarital agreement subchapter applies to agreements between "prospective spouses" (§ 321). For agreements made during marriage, the Family Court's jurisdiction under § 507(a) is broader: it has "exclusive jurisdiction over the construction, reformation, enforcement and rescission of agreements made between future spouses, spouses and former spouses concerning the payment of support or alimony, the payment of child support or medical support, the division and distribution of marital property and marital debts and any other matters incident to a marriage, separation or divorce."

This article does not cover Delaware case law on when a postnuptial agreement is enforceable.

How Delaware divides property without a prenup

Without an agreement, the Family Court divides property by equitable distribution. Under 13 Del. C. § 1513(a), in a divorce or annulment "the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct." Section 1513(b)(1)c. excludes from marital property any "Property excluded by valid agreement of the parties." For divorce grounds and procedure, see Delaware divorce laws.

This page is general information, not a drafting guide. A lawyer licensed in Delaware can draft or review premarital agreements, even though the statute itself does not require independent counsel.

Disclaimer: This article provides general legal information about premarital agreements under 13 Del. C. §§ 321 to 328 and related Delaware statutes. It is not legal advice. The information was verified on 2026-10-08, and the law can change. For advice about your situation, consult a lawyer licensed in Delaware.

Related

• Prenuptial agreement laws in every state
• Delaware divorce laws
• Delaware alimony laws
• Delaware child support laws

Last updated: 2026-10-08.

Frequently Asked Questions

Are prenups enforceable in Delaware?

Yes. A premarital agreement in writing and signed by both parties is enforceable without consideration (13 Del. C. § 322), unless the challenging party proves one of the defenses in § 326(a).

Does a prenup need to be notarized in Delaware?

13 Del. C. §§ 321 to 328 contain no notarization or witness requirement. Section 322 requires a writing signed by both parties.

Do both parties need a lawyer for a Delaware prenup?

The statute does not require independent counsel. Sections 321 to 328 contain no counsel requirement and no waiting period before signing.

Can a prenup waive alimony in Delaware?

13 Del. C. § 323(a)(4) lets the parties agree to modify or eliminate spousal support or alimony. A child's right to support may not be adversely affected (§ 323(b)).

What makes a prenup invalid in Delaware?

Under 13 Del. C. § 326(a), proof that it was not signed voluntarily, or that it was unconscionable when signed and the challenging party lacked fair disclosure, a written waiver of disclosure, and adequate knowledge of the other party's finances.

Can a Delaware prenup be changed after the wedding?

Yes, but only by a written agreement signed by both spouses, which is enforceable without consideration (13 Del. C. § 325).