Prenuptial Agreement Requirements in Delaware

At a glance

Requirements one by one

Delaware uses a UPAA-based statute

Title 13, Chapter 3, Subchapter II contains Delaware's Premarital Agreement Act. Under §§ 321-322, the agreement is made by prospective spouses in contemplation of marriage and must be written and signed by both parties.

Delaware uses the original UPAA's conjunctive disclosure structure. Voluntary execution stands alone, but unconscionability must be combined with every listed disclosure failure before § 326(a)(2) defeats enforcement.

The agreement needs a writing and both signatures

Section 322 says the agreement must be written and signed by both parties. It is enforceable without consideration, so no separate payment or property exchange is required.

Under § 324, the agreement becomes effective upon marriage. Signing satisfies the form but does not activate the agreement if the contemplated marriage never occurs.

Disclosure has three statutory alternatives

The § 326(a)(2) defense succeeds only when the challenger proves execution-time unconscionability and all three disclosure failures: no fair and reasonable disclosure; no voluntary express written waiver of further disclosure; and no actual or reasonably available adequate knowledge of the other party's property or financial obligations.

The waiver must be express, voluntary, and in writing. The statute does not say that it must be a separate document.

Delaware ties unconscionability to disclosure

Section 326 creates two routes to nonenforcement. The first is involuntary execution. The second is unconscionability when the agreement was executed together with all three disclosure failures.

The court decides unconscionability as a matter of law. Section 326 does not state a general enforcement-time unconscionability review for every term.

The Act contains no public-assistance support override

Under § 323(a)(4), parties may modify or eliminate spousal support or alimony. Unlike the standard UPAA provision used in many states, Delaware's § 326 ends after the enforcement test and court-law determination; it does not add a public-assistance eligibility override.

The support term remains subject to the agreement-wide execution and disclosure rules, but Subchapter II supplies no separate statutory support floor.

Child support and custody remain under legal limits

Section 323(b) says a prenup may not adversely affect a child's support right. Section 323(a)(8) permits other personal terms only when they do not violate public policy or a criminal statute.

Custody remains for the court. Under § 701(a), when parents live apart the court may award custody to either parent, and neither parent receives a presumption of being better suited.

Post-marriage changes require a signed writing

The effect and change rules appear in §§ 324-325. After marriage, § 325 permits amendment or revocation only through a written agreement signed by both parties. The change or revocation is enforceable without consideration.

Subchapter II does not add a notary, witness, or payment requirement to that change agreement.

What trips people up

• Delaware's disclosure test is conjunctive. Unconscionability under § 326(a)(2) must be paired with all three disclosure failures.
• There is no statutory public-assistance override. Delaware omitted that standard UPAA support provision from Subchapter II.
• Notarization is not the statutory form. Section 322 states the form as a writing signed by both parties.

Common questions

Is independent counsel mandatory?

Subchapter II does not impose a separate-counsel mandate, counsel waiver, fixed review period, or pre-wedding countdown. Section 326 still makes voluntary execution an independent requirement.

Can the parties waive further financial disclosure?

Yes. Section 326 recognizes a voluntary express written waiver of further disclosure. Fair and reasonable disclosure or adequate financial knowledge can also defeat the disclosure-based challenge.

Can a Delaware prenup waive alimony?

Section 323 permits modification or elimination of spousal support or alimony. The term remains subject to the Act's enforcement and public-policy rules, but Subchapter II states no public-assistance override.

Statutes and sources

• 13 Del. C. §§ 321-330. Current Delaware Premarital Agreements subchapter. Official Delaware Code (accessed July 28, 2026).
• 13 Del. C. § 701. Current custody authority and no-parental-presumption rule. Official Delaware Code (accessed July 28, 2026).