Prenuptial agreement:clear rules before it matters

With the matrimonial property regime the question is rarely whether to depart from the standard but how far. A separation of property switches the equalization of accrued gains off entirely. That is clearly settled but often crude: it hits the economically weaker side hard and brings disadvantages in succession and tax law. A modified regime keeps the equalization in principle and takes individual values out of it in a targeted way, for instance a business, a practice or an inheritance, or caps the equalization claim in amount (§§ 1408, 1414 BGB). For businesses that is as a rule the more suitable route.

The pension rights adjustment can be modified or excluded, but only within limits. The family court reviews such clauses and can set them aside where they leave one spouse without protection in their pension provision (§ 8 VersAusglG).

With post-marital maintenance the amount can be settled or limited. Maintenance for the care of shared children, by contrast, is largely beyond arrangement: it does not serve the spouse in the first place, but the child.

How the logic of the equalization works is set out under assets & accrued gains. Where a business is involved, the route almost always leads through a modified regime rather than a plain separation of property. In 2025 the Federal Court of Justice confirmed that excluding the equalization of accrued gains in an entrepreneur's marriage is not in itself contrary to public policy (XII ZB 395/24): what counts is whether one side was in an inferior position when the contract was concluded. What follows from that for drafting is covered in excluding or modifying the equalization by prenuptial agreement.

German courts do not wave prenuptial agreements through. They examine them on two levels: validity when the contract was concluded (§ 138 BGB) and its exercise when the marriage fails (§ 242 BGB).

An agreement does not wobble merely because it benefits one side more. It becomes critical only where objective one-sidedness and an inferior bargaining position come together: the classic case is the contract produced a few days before the wedding. Conversely, a prenuptial agreement becomes robust through advice on both sides, enough time before the appointment and visible compensation for the side that gives something up.

We draft the agreement so that it holds: balanced enough to withstand judicial review, and concrete enough to take effect when it matters. Existing agreements we examine for their robustness, including those concluded abroad. The recording itself is done by a notary; we prepare it and accompany you there.

The conversation takes place at Frankenallee in Frankfurt-Gallus or by video, in German, English or Spanish as you prefer. We reply to written enquiries usually within one working day.