TL;DR: A separate property clause names which assets stay yours alone, and can cover intellectual property for things you create. According to a 2023 Harris Poll reported by Axios, 41% of engaged or married Gen Z adults and 47% of millennials reported having a prenup, far beyond the celebrity image. These clauses protect freelancers, side-hustlers, and salaried couples, not only celebrities.You probably saw the headlines about which celebrity couple signed a prenup before walking down the aisle. Or are keeping tabs on what's happening with Taylor Swift and Travis Kelce as they approach their wedding day. The coverage tends to follow a familiar script: IP worth millions, a sprawling property portfolio, a small army of attorneys. It makes prenups feel like something built for people whose net worth has a lot of zeros.
The reality is closer to home. A 2023 Harris Poll reported by Axios found that 41% of engaged or married Gen Z adults and 47% of millennials reported having a prenup, according to The Harris Poll's America This Week Wave 187 . These are not catalog-owning celebrities. They are people with a side business, a freelance practice, a 401(k), or a savings account they opened before they met their partner. The clause doing most of the work in those agreements is the separate property clause, and it is worth understanding what it does.
The celebrity headlines hide a normal couple truth Celebrity prenup coverage is entertaining, and it sticks. The trouble is that it sets the wrong reference point. When the only prenups you read about involve private jets, it is easy to assume the document has nothing to say about your life.
But prenups have moved well into ordinary territory. About one in five married couples in the U.S. have a prenuptial agreement, according to the same 2023 Harris Poll reported by Axios. Younger couples are adopting them at higher rates than their parents did. If you have wondered whether prenups are still mostly for the rich and famous , the data points the other way.
What most of these agreements share is a small set of clauses doing practical work. Two of them matter for nearly everyone: the separate property clause, which decides what stays yours, and the intellectual property clause, which does the same for things you create. Neither requires a fortune to be useful.
What a separate property clause does A separate property clause is the section of a prenup that identifies which assets belong to one partner alone, both during the marriage and if it ends. Separate property generally includes what you owned before marriage, plus inheritances and gifts you receive while married. Marital property, by contrast, is what the two of you build together during the marriage.
The clause does two useful things. First, it names specific assets as separate, so there is no argument later about whether your pre-marriage savings account or your grandmother's jewelry was ever on the table. Second, a well drafted clause can state that the future growth of those assets stays separate too, so an account that appreciates over a decade of marriage does not quietly become shared.
This is the core of most everyday prenups. If you want a fuller breakdown of how the categories work, our guide on community property versus separate property walks through it. The short version: a separate property clause lets you write down what is yours instead of leaving that question to a court years from now.
What happens without one: state law decides for you Here is the part that surprises people. If you do not have a prenup, you do not get to skip the question of who owns what. Your state answers it for you, using default rules you never chose.
Those rules fall into two broad families. In the nine community-property states recognized by the IRS in Publication 555 , assets acquired during marriage are generally presumed to be owned 50/50. Most other states use equitable distribution, where a court divides marital property "equitably," and "equitable" doesn't always mean "equal." A judge weighs factors like each partner's contribution, the length of the marriage, and earning capacity, then decides what is fair.
Most states recognize prenups through a shared framework, the Uniform Premarital Agreement Act , with each state layering on its own requirements. That is why the same clause can be treated somewhat differently depending on where you live, and why state rules are worth confirming with a licensed attorney. Our overview of how prenuptial agreements vary across America covers the terrain. The practical takeaway: a prenup lets you set the rules in advance instead of inheriting whatever default your state applies.
Situation
Without a prenup (state default decides)
With a separate-property clause
Savings account you opened before marriage
May stay separate, but only if you can trace it cleanly; commingling can blur it
Named as separate, with future growth addressed up front
A side business or freelance practice you grow during marriage
Growth during marriage may be treated as marital property
Defined as separate, with terms for any increase in value
A logo, manuscript, or monetized channel you create during marriage
May be deemed jointly owned absent a clause
Stated as separate, including ownership and control
An inheritance received during marriage
Generally separate, but vulnerable if commingled
Named as separate and kept distinct by design
Future income or royalties from your creative work
Can be treated as marital, depending on the state
Can be addressed so future royalties remain separate
The commingling trap The quietest way separate property turns into shared property has a name: commingling. It means mixing separate property with marital or joint property so the two can no longer be cleanly traced apart.
A common example: you keep a savings account you opened years before the wedding, then start depositing your paychecks into it after you marry. Your salary earned during the marriage is marital money. Once it flows into that pre-marriage account and mingles with the original balance, the line between separate and marital can blur. Over time, this can lead to transmutation, when property changes character, for example separate property becoming marital, through how it is titled, used, or mixed during the marriage.
A separate property clause helps on the front end by stating clearly what is meant to stay separate. Good habits do the rest: keep the asset in your own name, avoid running marital income through it, and hold on to records that show where the money came from. Our piece on commingling and what to watch for goes deeper on the day-to-day practices that keep separate property traceable. The clause sets the intent; careful record-keeping preserves it.
IP clauses for freelancers, creators, and more Now picture a freelancer. She designs brand identities on the side, owns a small logo she made for her own studio, and runs a YouTube channel that earns a modest but growing income. None of this is a billion dollar catalog. All of it is intellectual property, and absent a clause saying otherwise, the work she creates and grows during the marriage may be treated as jointly owned.
That is the heart of why IP clauses matter for ordinary creators. Intellectual property created or acquired during a marriage may be treated as jointly owned in the absence of a prenup specifying otherwise. A well drafted IP clause can address not only what exists today but work you create later, stating that future copyrights, trademarks, and the income from your creative work remain separate property. Vague language is easier to challenge, so specificity matters.
This applies far beyond influencers. A manuscript in progress, a side app, a portfolio of freelance work, a podcast, a course you are building: each is a creative asset that can grow in value during a marriage. Our guides on intellectual property and prenups and prenups for content creators and influencers cover how these clauses define ownership, control, and future income. You do not have to be famous for your creative work to be worth defining.
How to think about whether you need these clauses You do not need a spreadsheet of millions to ask the right questions. A few honest prompts tend to surface whether a separate property or IP clause belongs in your plan:
Did you bring savings, an inheritance, or a pre-marriage account into the relationship that you would want to keep distinct?
Do you run a side business, freelance practice, or creative project that earns income or could grow in value?
Do you own or expect to create intellectual property: a logo, manuscript, channel, app, or portfolio?
Would you rather define ownership yourselves than leave it to your state's default rules?
Many couples bring savings, debt, and side income into marriage without realizing how much the law has to say about all of it. If even one of those questions lands, these clauses are worth a conversation. Roughly 40% of marriages in the U.S. end in divorce, according to U.S. Census data cited in the same 2023 Harris Poll reporting; that is planning context, not a prediction about you. The point of writing these terms down is clarity now, while you and your partner have time and full information.
Frequently Asked Questions What is a separate property clause in a prenup? It is the section that identifies which assets belong to one partner alone, both during the marriage and if it ends. It can cover things you owned before marriage, plus inheritances and gifts, and can state that their future growth stays separate too, so they are not divided as marital property.
Do I need a prenup if I'm not wealthy? Possibly. Prenups are increasingly common among ordinary couples; a 2023 Harris Poll reported by Axios found 41% of engaged or married Gen Z adults and 47% of millennials had one. A separate property clause is useful for anyone with pre-marriage savings, a side business, an inheritance, or creative work to protect.
Can a prenup protect intellectual property I haven't created yet? Yes. A well-drafted IP clause can address work you create during the marriage, not only what exists today, by stating that future copyrights, trademarks, or income from your creative work remain separate property. Clear, specific language matters because vague clauses are easier to challenge.
What happens to my separate property if I don't have a prenup? Your state's default rules decide. In community-property states, assets acquired during marriage are generally presumed jointly owned. In equitable-distribution states, a court divides marital property "equitably," which does not always mean equally. A prenup lets you set the rules instead of leaving them to a judge.
Can my separate property accidentally become marital property? Yes, through commingling, mixing separate and marital funds so they can no longer be cleanly traced. For example, depositing your salary into a pre-marriage account can blur the line. A separate property clause plus keeping those assets in your own name and good records helps preserve their separate status.
A calmer next step If a separate property or IP clause sounds like something you want, that is what First was built for: a clear, guided way to define what is yours, what is shared, and what happens to your creative work, on your timeline. Couples can start with the Self-Serve package or connect with independent attorneys through the Lawyer Review package.
There is no rush and no single right answer. If you are weighing whether these clauses fit your life, take the questions above to a conversation with your partner first. And if you are not sure, talk to an attorney licensed in your state before deciding.
Methodology These figures are drawn from the 2023 Harris Poll conducted for Axios (America This Week Wave 187, fielded September 22 to 24, 2023, among 2,123 U.S. adults), and from U.S. Census data on marriage and divorce cited in that reporting. Prenup prevalence figures reflect respondents who are engaged or have been married. The poll is attributed to The Harris Poll as originator.
Sources State rules and enforceability factors vary. Confirm current rules with a licensed attorney in your state before acting.
First is not a law firm. The information and tools provided by First on this site are not legal advice and not a substitute for the advice of an attorney.
