The problem: When I was widowed, I made a will leaving my
home and everything else to my children. When I remarried, my spouse and I
typed an agreement stating that our assets are completely separate. We had it
notarized. Is it legal?
The expert: Steven P. Kuhn, a matrimonial and family law attorney based in
The rules: Pre- and post-nuptial agreements - written contracts made by two
persons prior to or after marriage - are often difficult to enforce.
Do-it-yourself agreements sometimes fall apart in court because they omit
important provisions (such as financial disclosures and waivers) or are drafted
The strategy: I can't determine whether your agreement is valid, since I
don't know whether there was complete financial disclosure on both sides. Have
an attorney review your agreement to ensure it is enforceable. If it isn't, the
$750 to $1,000 you will pay for a valid agreement will be worth it.
How it works: The goal with these contracts is to draft them so that both
parties must comply with their terms. If a post-nuptial agreement is
challenged, a judge must determine whether there was full and complete
financial disclosure of all assets by both spouses, so that each party was
aware of what they were giving up in the event of death or divorce. If either
party conceals assets or grossly misstates their value, the agreement may be
successfully challenged. The agreement also must be entered into without
either person feeling that they were forced to sign.
The results: Since New York law protects a person from being omitted from a
spouse's will, if your agreement is declared invalid, your children may have
to share your assets with your spouse if you divorce or die first. The law
permits a disinherited spouse to receive either $50,000 or a one-third share of
the estate (whichever is greater) unless this right was specifically waived in
a valid pre- nuptial or post-nuptial agreement.
For peace of mind, make sure your agreement solidly protects the assets you
acquired before marriage and pre-determines how the assets acquired during
your marriage will be distributed.