Prenuptial agreements, having long been viewed between a frame of practicality and social hesitation, have steadily gained traction as couples seek to define their financial rights and obligations before entering marriage. In Mississippi, these agreements carry significant practical and legal weight, but unlike many states, Mississippi has not adopted the Uniform Premarital Agreement Act. Instead, the enforceability of such agreements arises from the common law of contracts, overlaid with heightened judicial scrutiny.
Prenuptial agreements were once considered contrary to public policy, rooted in the idea that they undermined the permanence of marriage. Over time, however, courts recognized their practical role in addressing premarital property, protecting children of prior marriages, and clarifying expectations. In Mississippi, the shift toward enforceability has been driven not by legislative reform but by judicial acknowledgment that such agreements can serve legitimate purposes when entered into fairly and transparently.
Enforceability and Judicial Scrutiny
Mississippi courts treat prenuptial agreements as enforceable as any other contracts,[1] but they are subject to the heightened requirement of being fair in the execution.[2] “Fair in the execution” means that the agreement must be voluntarily entered into and each party must adequately disclose his or her financial assets.[3] Disclosure is central to the integrity of a valid prenuptial agreement. The Mississippi Supreme Court has reiterated that parties to a prenuptial agreement must enter into it with full knowledge of each other’s financial circumstances.[4] Although the law does not demand exhaustive itemization of every account or asset, it does require that a prospective spouse have sufficient information to make an informed choice. Practically, not only should disclosure be made to the fullest extent possible, but both parties should insist an acknowledgement of adequate disclosure by the other party, specifically acknowledging that all requested information was provided and any right to information not requested is waived.
Fairness also plays a pivotal role in determining the enforceability of a prenuptial agreement. In Sanderson v. Sanderson, the Court stated that prenuptial agreements must be substantively conscionable at the time of execution.[5] The judiciary is cautious about agreements that disproportionately favor one party, particularly if enforcement would leave the other spouse without reasonable means of support. While unequal bargains are not automatically invalid, Mississippi courts are alert to overreaching in circumstances where one spouse had substantially greater leverage or access to information.
Based on the foregoing, when applying the standard law of contracts, plus the heightened requirements of being “fair in the execution,” a set of requirements for enforceability of prenuptial agreements under Mississippi law emerge: voluntariness, disclosure, and substantive conscionability. Voluntariness requires that the agreement be signed without coercion, undue influence, or duress. Courts are attentive to timing, noting that presenting a prenuptial agreement on the eve of a wedding may suggest undue pressure. The prospective spouse may have invested in wedding arrangements or felt unable to decline, circumstances that weigh against a finding of voluntariness. To mitigate this risk, negotiations should begin well in advance of the ceremony.
Full disclosure, while not quantified by case law, is measured against the standard of what a reasonable person would need to know to make an informed decision. Even though the Court has held that adequate disclosure may be made by an “independent knowledge of each other’s financial state,”[6] schedules of assets, liabilities, and income[7] should be provided as a matter of course when negotiating and executing a prenuptial agreement, as such demonstrates transparency and creates a clear record of what information was disclosed at signing. Disclosure is not simply a formal requirement but an equitable one, ensuring that a waiver of rights is meaningful and not based on incomplete or misleading information.
Substantive conscionability is assessed both at the time of execution and, to some extent, in light of circumstances at enforcement. The doctrine of unconscionability applies to the most egregious of contractual situations, and an unconscionable contract is one such as no person in his senses would make, and no fair person would accept.[8] This standard means that Mississippi judges retain broad discretion to balance freedom of contract with protection against exploitation.
Intersection with Statute
Although Mississippi has no statutory scheme governing prenuptial agreements, certain statutes directly intersect with their use. One of the most important is Miss. Code Ann. § 91-5-25, which gives a spouse the right to disclaim the predeceased spouse’s will and instead elect to take what he/she would have under the laws of intestate succession. In Mississippi, spouses can validly waive this right in a prenuptial agreement, provided the agreement meets the standards set forth above.[9] Without waiving this right in a prenuptial agreement (or otherwise), the surviving spouse could take a portion of the deceased spouse’s estate regardless of the terms of a will and/or prenuptial agreement. Waivers of homestead rights, dower and curtesy, and exempt property allowances may also be included in valid agreements. Thus, to the extent possible, prenuptial agreements should align with the couple’s estate planning by aligning expectations with testamentary documents.
Tax Considerations
Couples should be thoughtful of the federal income tax implications of their marriage. Typically, married couples will file joint income tax returns, but a well-drafted agreement may address how income, deductions, credits, and exemptions will be reported and allocated between the spouses, as well as from whose property any associated tax liability will be paid. By addressing these considerations prospectively, the agreement can provide both clarity and protection against unanticipated tax controversies should the marriage dissolve.
The federal estate and gift tax consequences also warrant deliberate attention. A prenuptial agreement can define the scope of wealth transfers that will occur during marriage. For wealthier clients, provisions concerning annual exclusion gifts, spousal transfers, gift splitting, portability, tax apportionment,[10] and the use of lifetime exemption amounts may be advisable. Additionally, the agreement may clarify whether each spouse intends to waive elective share rights or marital deductions, choices that can materially impact estate tax exposure. Addressing these matters in advance helps ensure that the couple’s tax planning coincides with broader estate planning objectives.
Practical Considerations in Drafting and Execution
The practical side of prenuptial agreements in Mississippi cannot be overstated. As courts apply heightened scrutiny, process matters as much as substance. A well-drafted agreement is one that not only meets legal standards but also demonstrates the fairness of the process by which it was reached. Early engagement in negotiations allows for thoughtful deliberation, reduces claims of coercion, and permits time for independent review. Presenting a proposed agreement weeks or months before the wedding reflects good faith and respect for voluntariness.
Independent legal representation is another best practice. While Mississippi law does not mandate separate counsel, the presence of independent advisors for each party strengthens the case for enforceability. Courts are less likely to find unfairness where each spouse had the benefit of legal advice and the opportunity to negotiate terms. Similarly, written financial disclosures, preferably in the form of attached exhibits or schedules, document transparency and reduce the likelihood of later disputes. Substantively, agreements should avoid provisions that appear punitive or grossly disproportionate. While it is legitimate to protect premarital assets or family businesses, terms that strip one spouse of all rights without reasonable provision are vulnerable to challenge.
Conclusion
Mississippi’s approach to prenuptial agreements is defined by judicial oversight rather than statutory codification. This reality makes the drafting and negotiation process critical. Agreements that are transparent, balanced, and executed in good faith are likely to be upheld, while those that reflect secrecy, coercion, or inequity are at significant risk. For couples and advisors, the message is clear: disclose fully, seek counsel, and draft fairly. In doing so, prenuptial agreements can serve their intended function of protecting assets and clarifying expectations without later being declared unenforceable by a Mississippi court.
[1] Mabus. v. Mabus, 890 So.2d 806, 818 (Miss. 2003).
[2] Estate of Hensley v. Estate of Hensley, 524 So.2d 325, 327 (Miss. 1988).
[3] Id.
[4] Sanderson v. Sanderson, 170 So.3d 430, 435 (Miss. 2014).
[5] Id.at 437.
[6] Id. at 435.
[7] See Form 8.05, required in divorce proceedings, which serves as an example to the type of information to be provided and disclosed. https://chancery10th.com/wp-content/uploads/2019/02/RULE-8.05-FINANCIAL-DISCLOSURE.pdf
[8] LAGB, LLC v. Total Merch. Servs. Inc., 284 So.3d 720, 727 (Miss. 2019).
[9] Estate of Bell v. Estate of Bell, 372 So.3d 1008 (Miss.Ct.App. 2023).
[10] Including with respect to qualified terminable interest property under IRC § 2207A.
