Marital Agreements FAQ
A prenuptial agreement is a contract signed by spouses in advance of marriage that sets bright-line rules on how separate property and marital property should be defined. A prenuptial agreement also allows the spouses to negotiate alimony (called maintenance in New York), ownership of family businesses, and modifying the mandatory share to which a surviving spouse is entitled.
Courts avoid personal issues in a marriage such as division of household chores, frequency of sexual relations, or infidelity. Further, spouses may not include clauses that promote divorce, illegal agreements or decisions concerning child support and custody.
A valid prenuptial agreement requires complete disclosure of all assets and liabilities at the time it is signed. Both parties should retain independent counsel in order to make sure that each party's legal objectives are followed. The prenuptial agreement should be signed well in advance of the wedding date, and its terms must not be unconscionable — otherwise it may be challenged by either spouse or set aside by a court.
A postnuptial agreement is executed after marriage. In most marriages, financial circumstances, roles and relationships change which sometimes requires the spouses to renegotiate the terms of the marriage. Parties might sign a postnuptial agreement if one spouse receives a large inheritance or both spouses wish to relax the rules of a prenuptial agreement. Another reason might be when there has been a loss of trust in a relationship due to infidelity or other problems created by either spouse.
A prenuptial agreement can and should explicitly address existing trust interests — without that language, appreciation on trust assets, income distributed to you during the marriage, or property purchased with trust distributions can become a point of dispute in a divorce, even if the trust principal itself is protected. We routinely coordinate prenuptial drafting with a client's existing trusts, and with the trustee where appropriate, so the agreement and the trust terms work together rather than leaving a gap between them.
Yes — a prenuptial agreement can classify a business or practice interest as separate property, cap or waive a spouse's claim to its appreciation in value during the marriage, and specify how, or whether, a spouse who worked in the business is compensated if the marriage ends. Without that agreement, New York's equitable distribution rules leave the business's appreciation, and sometimes the business itself, open to negotiation or valuation litigation during a divorce.
Beyond protecting against divorce, a marital agreement can preserve the effectiveness of trusts and estate planning techniques built for the rest of your family — for example, confirming that inherited or gifted assets stay separate property, or that a spouse's elective share rights are addressed consistently with a broader estate plan. Families with significant inherited wealth increasingly treat the marital agreement as one component of the overall estate plan, drafted alongside the trusts rather than as a separate, later afterthought.
It should be reviewed, even if it doesn't need to be rewritten. An agreement drafted around a modest starting net worth may not adequately address a business sale, a large inheritance, or a significant increase in value years later, and courts scrutinize marital agreements closely for fairness at the time they're signed — a periodic review keeps the agreement doing the job you intended as circumstances change.