"Prenuptial agreements" are contracts entered into by a couple before marriage setting out the rights of the parties in the event of divorce or death.
In the agreement, each party lists their separate property (what they owned prior to entering into the marriage). The agreement then sets out the division of property in the event of divorce as well as the inheritance rights between the parties. The agreement may also contain a "sunset provision," that it expires after the parties have been married for a set number of years.
Requirements for a Validly Executed Prenuptial Agreement
(1) The agreement must be in writing; there are no oral prenuptial agreements.
(2) The agreement must be executed voluntarily; if it is found that either party signed the agreement under duress or unfair pressure from the other side, it will not be enforced.
(3) The agreement must not be unconscionable (grossly unfair); if it leaves one party destitute or places an unreasonable burden on one party, then it will not be enforced.
(4) The agreement needs to be validly executed by both parties “in the manner for a deed to be recorded;” in other words, the prenup needs to be notarized.
A Prenuptial Agreement Can Include
(1) A provision to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;
(2) A provision for the ownership, division or distribution of separate and marital property;
(3) A provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship (subject to some limitation); and
(4) A provision for the custody, care, education and maintenance of any child of the parties (subject to some limitations).
[Domestic Relations Law § 236B]
Frequently Asked Questions
signs these types of agreements and why?
Often couples marrying for the second or more time will have children and/or substantial assets at the time of remarriage. They may wish to insure that all or some of their assets go to their children and not to the new spouse, who may have children and assets of their own. Even with a will which leaves everything to one’s children, without a prenup the surviving spouse is legally entitled to claim about half of the deceased spouse’s estate. Having been divorced before, these couples wish to simplify matters in the event of a divorce, including whether or not alimony will be payable.
When there is great economic disparity between the parties, or one of them owns a business, the wealthy spouse may want to protect themselves and, similarly, the less well off spouse will want to establish what they will receive in assets and/or alimony in the event of divorce. If there are business partners of one of the spouses, they may want protection so that the new spouse does not become a partner in the business by way of inheritance.