If your wealth includes stock options, RSUs, carried interest, a closely held business, or a trust, a prenup that simply labels property “separate” isn’t enough. These assets don’t behave like a house or a bank account — and a standard form doesn’t anticipate how they actually work.
What happens to options granted before marriage but vested after? Are RSUs treated differently depending on when they were granted, earned, vested, or sold? What if your company’s value soars but it produces no cash? If it’s sold for cash, restricted stock, rollover equity, or an earnout, when does a spouse have a claim — and to what?
These questions can be answered in a prenup, but only if the agreement is built around how your specific asset actually works.
I represent founders, executives, entrepreneurs, investors, business owners, and trust beneficiaries whose financial lives don’t fit a standard template.
Prenups for Startup Founders
Declaring your company “separate property” may not be enough on its own.
As a founder, you likely have obligations that go beyond your marriage — to investors, venture capital firms, other shareholders, or the company itself. Financing documents, shareholder agreements, and operating agreements often restrict a spouse from acquiring ownership or management rights, and may require a spousal waiver or acknowledgment.
In these situations, keeping your spouse out of the company isn’t just your preference — it may be essential to your investors and the business itself.
But protecting the company doesn’t mean your spouse has to walk away with nothing.
A well-structured prenup can separate ownership and control from financial participation: you keep full ownership, voting rights, management authority, and decision-making power, while your spouse receives a specifically negotiated contractual financial right outside the company.
Contractual Rights Without Ownership
One structure I use lets the business remain entirely your separate property while giving your spouse a contractual right to share in specified proceeds if you later realize value from the company.
Your spouse never becomes a shareholder, member, partner, or owner. They have no right to:
- Vote company shares
- Participate in management
- Inspect company books or records
- Interfere with financing or business decisions
- Require you to sell an interest
- Force a valuation of the company
- Force the company or you to create liquidity
Instead, if a defined transaction occurs and you actually receive proceeds, your spouse receives an agreed contractual share of those proceeds — a percentage that can be fixed or can grow with the length of the marriage. Caps, payment terms, and which transactions trigger payment are all negotiable.
This gives your spouse real protection without creating an ownership stake that could complicate your company’s cap table or investor relationships.
A Startup Can Be Worth Millions — and Produce No Cash
Private-company equity creates a unique problem in divorce planning.
A startup can carry a substantial valuation after a financing round while the founder has received little or no actual cash. The shares may be restricted, illiquid, and impossible to sell on short notice.
An agreement that requires payment based purely on an appraisal can create a liability with no cash behind it to satisfy it.
A better alternative: a realization-based approach. Instead of valuing the company at divorce and forcing an immediate buyout, the agreement provides that your spouse participates only when you actually receive defined Net Proceeds from a sale or other liquidity event — eliminating the need for a forced sale, a forced buyout, or years of fighting over the theoretical value of an illiquid company.
Defining a “Sale” or Liquidity Event
For a startup or closely held company, “sale” has to mean more than an outright, all-cash sale of the business. A carefully drafted agreement addresses:
- A sale of all or part of your interest
- A merger or acquisition
- A redemption or buyout
- A secondary sale of shares
- A recapitalization
- A transfer of an ownership interest for value
- A sale of substantially all company assets
- A transaction involving a successor or reorganized entity
The agreement should also distinguish real liquidity from ordinary financing and internal transactions. A new funding round that raises your company’s paper valuation doesn’t mean you personally received a dollar.
Cash, Public Stock, and Cryptocurrency
Not every transaction pays out entirely in cash — but not every non-cash payment is illiquid, either.
Unrestricted, publicly traded securities can be treated as the equivalent of cash when their market value is objectively determinable and they can actually be sold. The same logic can apply to cryptocurrency or another digital asset traded on a recognized market. The agreement specifies exactly when this kind of property counts as realized value, and how it’s valued.
Restricted Stock, Private Equity, and Rollover Interests
Illiquid property raises a different set of concerns.
If you sell one startup, you may receive stock in the acquiring company instead of cash — and be required to roll proceeds into the new company or accept restricted securities you can’t immediately sell. Treating that property as cash creates a payment obligation before you’ve actually realized any value.
A prenup can instead provide that genuinely illiquid consideration doesn’t count toward Net Proceeds until it’s sold, redeemed, exchanged, or otherwise converted to cash or a defined cash equivalent — and that any replacement interest remains your separate property. That way, you’re not solving one problem only to create a new dispute over whatever you received in exchange.
Earnouts, Escrows, and Deferred Sale Proceeds
The headline purchase price is rarely what you actually walk away with. A transaction may involve:
- Earnout payments tied to future performance
- Escrowed funds
- Holdbacks
- Deferred payments
- Indemnification obligations
- Transaction expenses
- Debt paid at closing
- Taxes attributable to the transaction
A sophisticated prenup defines Net Proceeds instead of simply applying a percentage to the announced purchase price. Contingent or deferred amounts are addressed when received. Escrowed funds are addressed when released. The goal is to base your spouse’s right on the economic benefit you actually receive — not a number in a press release.
Preventing Avoidance Without Controlling the Business
A realization-based structure also has to guard against intentional avoidance — a founder deliberately structuring a transaction just to defeat a spouse’s right. At the same time, it shouldn’t hand your spouse influence over legitimate financing, tax planning, investment decisions, or business strategy.
Getting this balance right is where careful drafting matters most: protecting the negotiated financial right without giving your spouse a say in how you run your company.
Stock Options, RSUs, and Equity Compensation
Complex equity compensation isn’t limited to founders. Executives and employees increasingly receive significant pay through:
- Stock options
- RSUs
- Restricted stock
- Performance stock units (PSUs)
- Phantom equity
- Warrants
- Profits interests
- Partnership interests
- Carried interests
- Deferred compensation
- Other incentive awards
These assets rarely fit neatly into simple categories. An option can be granted before marriage but vest afterward. An RSU can be earned over several years. A performance award may never vest at all.
A carefully drafted prenup distinguishes between the date an award is granted, earned, vested, exercised, and ultimately converted into value. For example, equity granted before marriage — and its later proceeds — can remain separate property, while compensation granted for services performed during the marriage is treated differently. The agreement can also address what happens if an award is forfeited, replaced, converted in a merger, or exchanged for other equity.
The Agreement Shouldn’t Force You to Sell Stock
Timing matters. You may hold vested shares but be subject to blackout periods, trading policies, securities-law restrictions, lockups, or your own investment judgment.
A well-drafted prenup defines the economic rights at stake without giving your spouse the power to dictate when you exercise or sell — a distinction that matters most for options, restricted equity, and concentrated stock positions.
Carried Interests, Profits Interests, and Private Investments
If you work in investing, your interests may be even harder to value. A carried or profits interest can have little value today and substantial value years from now, tied to investments that won’t be realized for a long time.
The agreement can identify whether the interest itself is separate property, how future distributions are treated, and whether a spouse’s participation right is triggered only when money actually arrives. The same principles extend to private equity interests, venture investments, partnership interests, and other assets that can’t simply be priced against a public stock quote.
Crypto, Tokens & Digital Assets
For founders and executives in the digital asset space, a prenup needs to address more than the current value of a wallet.
Crypto-related wealth can include founder equity, token allocations, vested and unvested tokens, restricted or locked tokens, staking rewards, protocol incentives, governance rights, warrants for future tokens, and assets held personally or through an entity. Some of it is readily marketable. Some of it has real theoretical value and zero practical liquidity — and the agreement should tell the difference rather than treating every token as cash.
A founder, for instance, may hold a large token allocation subject to vesting, lockups, transfer restrictions, or thin trading markets. A properly structured agreement lets you keep ownership and control of those assets without being forced to transfer tokens, grant governance rights, hand over wallet access or private keys, or liquidate an illiquid position just to satisfy a marital claim.
Where the parties agree that a spouse will share in future value, that right can be built around an actual realization event — triggered when you receive cash or a readily marketable digital asset with a determinable market value, not when an illiquid token merely vests or gets assigned a theoretical price.
The same logic applies where founder equity and token economics overlap. A transaction involving a crypto company might include cash, public securities, restricted securities, token consideration, earnouts, or future token rights. The agreement should define what counts as proceeds, when value is actually realized, and how to avoid counting the same value twice.
A sophisticated crypto prenup can address:
- Founder equity and token allocations, separately
- Vested, unvested, restricted, and locked digital assets
- Liquidity events and sales of company interests
- Cash versus readily marketable token consideration
- Illiquid or privately traded tokens
- Staking rewards, distributions, and protocol incentives
- Appreciation and income from separate digital assets
- Wallets, custody, and control of private keys
- Governance and voting rights
- Token rights received through a company, foundation, DAO, or related entity
- Tax liabilities tied to a transfer or realization event
- Protection against being forced to sell assets, cede company control, or make a spouse an owner of the underlying business
The goal isn’t just to list cryptocurrency as separate property — it’s an agreement built around how your assets actually work, one that still holds up if your company, token structure, or liquidity profile changes substantially down the road.
If your wealth combines traditional equity with digital assets, I draft the agreement around the actual economics of your situation — not conventional provisions written for ordinary investment accounts.