Can a New York Prenuptial Agreement or Postnuptial Agreement be Used to Cut a Husband or Wife Out of the Inheritance?
A prenuptial agreement is a contract between two people entered into prior to marriage or civil union which is triggered in the event of divorce and includes provisions for the division of property and spousal support upon the dissolution of marriage or in the event of death. A postnuptial agreement does the same thing but during the marriage.
Now at days, many people get married more than just once and therefore having a validly executed prenuptial agreement or postnuptial agreement can be helpful in making sure property stays with your side of the family. In addition, if you have children from previous marriages, having a valid prenuptial agreement can make sure that your property will pass to your children and not to your spouse, who could in turn, pass your property to your spouse’s children (particularly where that spouse has children from a separate marriage).
If you die, having a validly executed prenuptial agreement or postnuptial agreement can prove to be an effective estate planning tool because such agreement will control the distribution of assets at your death. In New York, a surviving spouse is given a right of election which entitles the surviving spouse to take under the will or take a 1/3 elective share. Therefore, if you direct in your will that all property will pass to your children, your surviving spouse will still be able to take 1/3 of your property. This elective share right is waived, however, by a spouse who signs a validly executed prenuptial agreement.
The agreement must be written and entered into freely, without any undue influence. In addition, there cannot be any attempt in the agreement to do anything illegal or modify child support obligations. Most importantly, you must ensure that the prenuptial agreement is validly executed and all of the required formalities are complied with.
At the Law Offices of Albert Goodwin, we represent clients wishing to enter into a prenuptial agreement and postnuptial agreement. Call us at (212) 233-1233 and speak with an experienced attorney.