With a prenuptial agreement negotiated and executed in New York, the answer to the question”Do Prenuptial Agreements Expire?” is rather complex. A prenuptial agreement is a contract and therefore the terms will vary. I’ll explain some of the more common scenarios:
Silence regarding expiration
Should the agreement be silent regarding an expiration date – there is none. This means that the agreement lasts through death, divorce or a modification/renunciation of the agreement.
People don’t often think of a prenuptial agreement with regard to death however it is a very important function of the agreement as we always hear the statistic that ‘fifty percent of marriages end in divorce”. Those marriages that do not end in divorce will eventually end in the death of one or both of the spouses. This is where it gets interesting in the drafting of the prenuptial agreement and various ways it can expire.
Sunset clauses enumerate exactly when they expire. As an example, a clause that reads “should the marriage last ten years, the wife shall have the right to receive $250,000”. This is an explicit expiration however it is only for a sum certain. Very likely the agreement will have language within that states that all other clauses or agreement are still in force. It is possible that the sunset clause will read that the entire agreement becomes null and void upon a certain date, event or number of years of marriage. Without an explicit clause stating what will happen upon the sunset, the equitable distribution, maintenance or estate laws in effect at the time of the divorce or death will control. Sometimes the agreement will specify that the sunset clause is only in case of divorce, some only in case of death and some will have a sunset clause for either scenario.
Right to draft and execute estate documents including a will
Often, a prenuptial agreement will state that the parties have the right (but not the obligation) to execute estate documents that preempt the prenuptial agreement. These documents must be executed after the date of execution of the prenuptial agreement in order for them to qualify. They should also specifically acknowledge the prenuptial agreement and state that the new documents override the original agreement.
Prenuptial agreements can also be modified later so long as they are executed the same way that the original agreement is executed, which means it must be in writing and notarized. This means that if you do not have a sunset clause you can change the agreement if both parties are willing.
When negotiating a prenuptial agreement, an attorney or mediator knowledgeable about both divorce and estate law should be consulted.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
670 Long Beach Blvd., Suite 205,
Long Beach, New York 11561
- Posted by Deborah E. Kaminetzky
- On June 11, 2019
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