Most people have probably heard Kanye West’s infamous song, “Gold Digger.” Specifically, the line “Holla, ‘we want prenup! We want prenup!’” Interestingly, the lyrics of Mr. West’s hit song seem to indicate that a prenuptial agreement can protect an individual from having to pay child support (wrong).  Additionally, Mr. West’s popular song also seems to indicate that prenuptial agreements are only for the rich and famous.  When it comes to the discussion of prenuptial agreements, the reaction can be mixed.  Many people express apprehension about entering into a prenuptial agreement because they can feel like signing one is a symbol that their marriage is doomed.  However, prenuptial agreements do not only account for the possibility of divorce. They can also address what should happen in the event of an unfortunate and untimely death.  As such, in order to assist our readers, in this week’s blog post we set out to cover some basic concepts to think about when deciding whether you and your future spouse want to enter into a prenuptial agreement.

What is a Prenuptial Agreement?

Under New York Domestic Relations Law, marital agreements may be “made before or during the marriage.” DRL § 236(B)(3). As indicated by the first three letters of the word, “pre,” a prenuptial agreement (also referred to as an antenuptial agreement) is a marital agreement that is entered into before the parties to the agreement get married. A prenuptial agreement is entered into in contemplation of the marriage and becomes effective when the parties in fact get married. The agreement must be in writing and must be signed by both parties in front of a notary public. Further, the terms of a prenuptial agreement must be fair and reasonable at the time the agreement is entered into and not unconscionable at the time of the divorce to be enforced by a court.

Contrary to popular belief, a prenuptial agreement is not only for the rich and famous. Instead, anyone contemplating marriage can enter into a prenuptial agreement and tailor said agreement to their own specific needs.

What Can Be Contemplated In A Prenuptial Agreement?

Again, while a prenuptial agreement can be tailored to each couples’ own needs (subject to state law and public policy), there are some general terms many couples contemplate when deciding to enter into a prenuptial agreement. This blog will discuss just a few of those.

First, parties can waive maintenance or spousal support in a prenuptial agreement.  There is one caveat to this general proposition, however. Pursuant to New York General Obligations Law § 5-311, a spouse can contract to relieve the other of a requirement of support except to the extent that the spouse may become a public charge. For example, the parties enter into a prenuptial agreement and agree to waive maintenance. At the time of execution of the agreement, both parties are working and have a stable income. During the marriage, the wife stops working and becomes a stay at home mother, bringing in no income whatsoever during a lengthy marriage. At the time of the divorce, the wife has no job, is left with no assets pursuant to the terms of the prenuptial agreement, is at risk of being a public charge and will need to rely on government assistance to support herself. A court will likely find that the provision waiving maintenance is void and will not uphold the waiver because enforcing such provision would be unconscionable.

Second, parties can also waive their rights in estates in a prenuptial agreement. In fact, waiver of estates rights is one of the most significant motivators behind entering into a prenuptial agreement. Simply put, prenuptial agreements do not only account for what happens in the event of divorce. They can be an effective way of planning for an unfortunate and untimely death.  For example, if both or even just one party was previously married and has children from a previous marriage, they may want to seek to protect the children’s inheritance rights in an agreement.

Third, a prenuptial agreement can contain a provision waiving pension or retirement rights. However, this may be tricky as some retirement accounts only permit a spouse to waive their rights, not future spouses. On the other hand, the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Retirement Equity Act of 1984 (REA), does not prohibit a waiver of any interest in a pension by an otherwise valid prenuptial agreement. Instead, a prenuptial agreement cannot constitute a waiver of survivor benefits. Whether parties can waive their rights to a pension or retirement account in a prenuptial agreement should be determined on a case to case basis and should be explored with counsel of the parties own choosing.

Finally, a prenuptial agreement can establish pre-marital debt and separate property. For example, if a party comes into the marriage with substantial student loan debt, the parties can agree in a prenuptial agreement that the debt remains with that spouse and does not become a marital loan. Similarly, a prenuptial agreement can define and can specifically identify which property is separate property for each spouse. In other words, a prenuptial agreement can identify which property will not be subject to distribution upon a future divorce. As safe practice however, you should always keep your separate property separate and apart from all marital property (property obtained during the marriage) to ensure it retains is separate nature.

What Cannot Be Contemplated In A Prenuptial Agreement?

Contrary to what Kanye West’s song may suggest, there are certain things, like child support, that cannot be contemplated in a prenuptial agreement. Courts have found that it is against public policy for parties to waive child support in a prenuptial agreement for future children of the marriage. Similarly, a prenuptial agreement cannot address issues of custody for unborn children either. These issues must be addressed based on the circumstances at the time of the separation or divorce action.

The above is a mere glance at the intricacies of a prenuptial agreement. Any person contemplating entering into a prenuptial agreement or seeking advice on how a prenuptial agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event that you need legal assistance, please contact Marissa Pullano or Samantha M. Guido at 516-746-8000 or at and