15 Things You Might Not Know About Prenups In New York State

If you’re considering arranging a prenuptial agreement in New York, you should be aware of the legal issues around them. I’ve compiled an overview of the basics below. For a more in-depth look at your particular situation, please feel free to contact me to discuss.

Prenuptial Agreements in New York State

1. A prenuptial agreement (also known as an antenuptial agreement), is a contract entered into by two members of a legal marriage that usually describes the rights of each party upon death or divorce. This often relates to matters of finance and property.

2. A prenup often serves the interests of both parties, rather than only one party as is commonly perceived. For example, if one partner wishes to ensure the other receives more than they may be entitled to under New York law.

3. You should consider a prenuptial agreement if:

  • You would like to clarify expectations upon the event of death or divorce
  • You would like to be protected against loss of finance in the event of death or divorce, such as particular assets, a business, etc.
  • You have a desire to pass on certain assets to children or grandchildren resulting from earlier marriages,
  • You have children and would like to manage custody issues in the event of divorce through contractual means, or
  • You wish to manage your finances through your own contractual agreements rather than by the state, in the case of either death or divorce.

4. In New York, without a prenuptial agreement the court will divide the property in a way that is considered equitable, which may be dividing it down the middle.

5. In New York, without a prenuptial agreement, if one spouse dies, courts typically follow the will of the deceased, although the surviving spouse is usually entitled to at least one half of the estate even if this goes against the will. A prenuptial agreement would circumvent this.

6. For a prenuptial agreement to be valid, it must be in writing, signed, and orally acknowledged before an authorized person as well as certified in writing.

7. Contrary to the name, prenups can also be entered into when a couple is already married.

8. In many cases, the less wealthy spouse will receive less under the prenuptial agreement than he/she would receive under the usual laws of divorce or wills, but they may also receive more, depending upon the agreement made.

9. An “escalator clause” in a prenup states an increase in the amount of assets or support given to the less wealthy spouse dependent on the length of the marriage or income following the agreement.

10. A lawyer is typically used in arranging a prenuptial agreement, usually employed by the wealthier party. While the less wealthy partner isn’t required to have legal representation, this is also advised, as the agreement is more likely to be enforceable if back-and-forth negotiations occur prior to the final agreement.

11. New York public policy strongly favors individuals deciding their own interests through contractual arrangements, even if this leaves one spouse with no property or support. For this reason, it is important for both parties to represent their interests in negotiations.

12. While child support issues can be treated in a prenup, the court is not bound by these and they will serve mainly as points of consideration.

13. The agreement must be considered fair and reasonable at the time of making, and cannot be considered unconscionable at the time of final entry of judgment.

14. If one spouse misleads the other concerning assets or finances, the prenup would be considered invalid.

15. If one spouse exerts excessive pressure on the other to obtain signing of the agreement, it may be rendered invalid. This is a reason to create a prenup well before the marriage date, as ones entered into on, for example, the day before a wedding would be subject to investigation of duress.

While this covers the basics of New York prenuptial agreements, it’s highly likely that you will benefit by seeking legal counsel on these matters. If you’d like to discuss your particular situation, please feel free to contact me.



James J. Sexton