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.