Prenup Exceptions: Incapacity

Why You Should Add an Incapacity Exception to Your California Prenup

Prenuptial agreements aren’t just for celebrities or billionaires—they’re a smart planning tool for any couple who wants clarity about finances. But one important detail is often left out: an incapacity exception.

What’s an Incapacity Exception?

It’s a simple clause in your prenup that says: if one spouse becomes incapacitated (through illness, injury, or decline in health), the strict terms of the prenup won’t apply in the same way. In other words, if life takes a difficult turn, the healthier spouse can’t enforce an agreement that would leave the other without the support they need.

Why It’s a Good Idea in California

• Protects Both Spouses: California law already requires certain fairness checks, but an incapacity exception goes further by showing compassion and foresight.

• Avoids Costly Court Battles: Without it, your spouse (or their family) may end up fighting in court about whether the prenup is “unfair” under the circumstances. That means stress, legal fees, and uncertainty.

• Builds Trust: Including this clause shows that you’re not just protecting assets—you’re also protecting each other. That makes the agreement feel balanced and increases the chances a judge will uphold it.

  
  

Why You Shouldn’t Rely on “Unconscionability”

Some people think, “If my prenup ever feels too unfair, the court will just throw it out.” That idea comes from the legal concept of unconscionability. The problem is:

• Courts rarely strike down prenups this way—the bar is very high.

• It only gets decided after a breakup, when emotions and costs are at their worst.

• You won’t know the outcome until you’re already in litigation.

  
  

The Smarter Approach

By planning ahead and adding an incapacity exception, you’re creating a prenup that is both enforceable and compassionate. It reduces the risk of future conflict, protects you and your spouse from uncertainty, and shows the court that your agreement was made in good faith.

At the end of the day, a prenup should give you peace of mind—not more to worry about.

Talk to a California Prenup Attorney

At Ovando Bowen LLP, we draft and review prenuptial agreements that are fair, enforceable, and customized to your life. If you’re considering a prenup—or updating an existing one—contact our office to schedule a consultation. We’ll help you plan for the future with confidence.