Postmarital Agreement

Postmarital Agreement

An agreement made between spouses after marriage concerning the rights and responsibilities of the parties upon Divorce or the death of one of the spouses.

Postmarital agreements, also called postnuptial agreements, are agreements made between spouses while they are married. Postmarital agreements concern the rights and responsibilities of each spouse in the event that the other spouse dies or the couple divorces. All states allow postmarital agreements, but courts must review these agreements for procedural and substantive fairness before they can be executed.

In most states the law on postmarital agreements is similar to the law on premarital agreements. Both parties must make full disclosure of their earnings and their property, and the agreement must be in writing and signed by both parties. If Fraud, duress, or coercion was involved in the formation of the contract, a court may declare the agreement void. Some states declare that, when creating a postmarital agreement, both parties must be represented by an attorney in order for the agreement to be valid. Courts are free to strike down provisions in postmarital contracts that violate public policy.

Some states have special laws for postmarital agreements. In Minnesota, for example, the agreement may not address Child Support, Child Custody, or child visitation issues, and neither party may commence an action for separation or divorce within two years of the execution of the agreement. A section in Minnesota's statute also provides that no couple with a net worth of less than $1.2 million may fashion a postmarital agreement (Minn. Stat. Ann. § 519.11 [West 1996]). In Florida, if a postmarital agreement waives a spouse's rights upon the death of the other spouse, each spouse must make full and fair disclosure of assets. No such disclosure is required in Florida for similar premarital agreements (Fla. Stat. Ann. § 732.702 [West 1996]).

Postmarital agreements are distinct from separation agreements. Separation agreements are intended to govern the rights and duties of the spouses upon separation and until a court orders a divorce decree or until a court recognizes the separation. Postmarital agreements, by contrast, are intended to govern the rights and duties of the spouses after a divorce.

Further readings

Mercing, Christine S. 1990. "The Uniform Premarital Agreement Act: Survey of Its Impact in Texas and Across the Nation." Baylor Law Review 42 (fall).Mullin, William E., and Judith T. Younger. 1994. "Premarital and Postmarital Agreements." Bench and Bar (December).

Practising Law Institute (PLI). 1989. Tax Aspects of Spousal Rights: Pre- and Post-Mortem, by Ronald S. Kochman. Tax Law and Estate Planning Course Handbook Series, PLI order no. D4-5206.


Husband and Wife.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
The spouses may also consider entering into a postmarital agreement whereby the noninsured spouse agrees to release his or her community property rights in the policy.
She has helped many clients in Maryland and the District of Columbia with family law issues, including high-conflict divorces, custody cases involving special needs children and premarital and postmarital agreements. Becker is an experienced litigator but is also a trained collaborative practitioner and trained mediator.
Over thirteen chapters the author covers domestic violence, premarital and postmarital agreements, adoption, the divorce process, divorce, annulment, legal separation, marriage and the legal recognition of nonmarital couples, child custody, child support, spousal support, jurisdiction, and a wide variety of other related subjects and concepts.
(2) "Family cases" include dissolution of marriage, annulment, support unconnected with dissolution of marriage, paternity, child support, UIFSA, custodial care of and access to children, proceedings for temporary or concurrent custody of minor children by extended family, adoption, name change, declaratory judgment actions related to premarital, martial, or postmarital agreements, civil domestic, repeat violence, dating violence, and sexual violence injunctions, juvenile dependency, termination of parental rights, juvenile delinquency, emancipation of a minor, CINS/FINS, truancy, and modification and enforcement of orders entered in these cases.
See generally Oldham, supra note 2, [section] 4.06 (discussing difference between premarital and postmarital agreements).
Postnuptial agreements (also known as postmarital agreements) are agreements entered into by the parties after marriage that set forth the rights and obligations of each party in the event of death or divorce, and during the marriage.
Stretch, Premarital Agreements and Postmarital Agreements Enforced at Death, in PREMARITAL AND MARITAL CONTRACTS 161-94 (Edward L.