245
Postmarital Agreements: Validity and
Enforceablility
LINDA J. RAVDIN*
Introduction
A postmarital agreement is an agreement entered into during marriage
term commonly refers to an agreement made at a time when separation
or divorce is not imminent.1 By contrast, a separation agreement is an
agreement made after the marriage has already broken down and the
parties intend to separate or have already done so.2
The drafters of the Uniform Premarital and Marital Agreements Act
(“UPMAA”) elected to use the term “marital agreement” for the type of
at separation, marital dissolution, death of one of the spouses, or the
occurrence or nonoccurrence of any other event.”3
1. Simmons v. Simmons, 249 S.W.3d 843, 846 (Ark. App. 2007); Vaccarello v. Vaccarello,
757 A.2d 909 (Pa. 2000); Combs v. Sherry-Combs, 865 P.2d 50 (Wyo. 1993); Acre v. Koenig,
404 P.2d 621 (Idaho 1965).
2. In re Bisque, 31 P.3d 175 (Colo. Ct. App. 2001); Vaccarello, 757 A.2d 909; D’Aston v.
D’Aston, 808 P.2d 111 (Utah Ct. App. 1990).
3.
UNIF. PREMARITAL AND MARITAL AGREEMENTS ACT [hereinafter “UPMAA”] § 2(2)
(2012).
* Author of Premarital Agreements: Drafting and Negotiation (Am. Bar Ass’n 2d ed.
2017); shareholder in Pasternak & Fidis, P.C., Bethesda, Maryland; ABA Family Law Section
Co-Advisor to the Uniform Law Commission Drafting Committee on the Uniform Premarital
and Marital Agreements Act. Thanks to Austin Carlson, University of Iowa College of Law, for
his research assistance for this article.
Published in Family Law Quarterly, Volume 52, Number 2, Summer 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
246 Family Law Quarterly, Volume 52, Number 2, Summer 2018
A postmarital amendment to a premarital agreement or an amendment
to a prior postmarital agreement is itself a marital contract. It creates, in
effect, a new contract by altering the legal rights and obligations of the
parties under the prior agreement.4
At common law, spouses generally could not contract with each other.5
In In re Harber,6
held a postmarital agreement executed in 1938 was enforceable when
the husband died twenty-four years later. The court made clear that its
holding permitted such an agreement to govern disposition of property at
divorce as well as death. The Court of Appeals of Utah came to a similar
conclusion in a 1990 case, D’Aston v. D’Aston,7 citing In re Harber and a
number of cases from other jurisdictions.
There is now a clear trend toward general acceptance of postmarital
agreements pre-determining property rights at death and divorce. In most
states, spouses can do by agreement after marriage the same things they
can do by agreement before marriage as to property rights. But the law
regarding waiver of spousal support is less developed.
I. Uses of Postmarital Agreements
A postmarital agreement can be useful in a number of circumstances.
would otherwise have failed under the applicable statute of
frauds.8
• Parties may have wished to enter into a premarital agreement but
were not able to complete negotiations and drafting before the
wedding.9
• Parties may wish to ratify a premarital agreement that recited a
planned wedding date that was changed after execution so as to
4. Hendrick v. Hendrick, 976 P.2d 1071, 1073 (Okla. Ct. App. 1998); see also Bradley
v. Bradley, 164 P.3d 537 (Wyo. 2007) (stating that an amendment to a premarital agreement
is governed by same statutory criteria for validity as a postmarital agreement) (interpreting
Minnesota law).
5. Graham v. Graham, 33 F. Supp. 936 (E.D. Mich. 1940); Adams v. Adams, 113 A. 279
(N.H. 1921).
6. In re Harber v. Harber, 449 P.2d 7 (Ariz. 1969).
7. D’Aston, 808 P.2d at 111.
8. See In re Nelson, 53 So. 3d 922 (Ala. Civ. App. 2010); Lee v. Central Nat’l Bank &
Trust, 308 N.E.2d 605 (Ill. 1974); Estate of Weber, 167 N.E.2d 98 (Ohio 1950).
9. See Bailey v. Bailey, 498 S.E.2d 891 (S.C. Ct. App. 1998); Estate of Wiseman, 889 S.W.2d
215 (Tenn. Ct. App. 1994); Conigliaro v. Conigliaro, 1992 Del. Fam. Ct. LEXIS 41 (1992); Tibbs
v. Anderson, 580 So.2d 1337 (Ala. 1991); In re Estate of Lewin, 595 P.2d 1055 (Colo. App. 1979).
Published in Family Law Quarterly, Volume 52, Number 2, Summer 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Postmarital Agreements: Validity and Enforceablility 247
obviate any claim that the premarital agreement was abrogated as
a result of the postponement.
• Parties may wish to make alterations to the property disposition
or support terms of a premarital agreement to take into account
changes in circumstances since execution or to resolve a dispute
about a claim of breach.10
• Parties may have entered into a premarital agreement but, because
of questions about the validity of that agreement, they choose to
reexecute it after the marriage.11
• Parties may wish to document their intentions regarding the effect
understanding made after the marriage.12
• Parties may wish to document property transfers to effectuate
wills, or wills to be executed in the future, be given effect over any
spousal rights that might otherwise apply at death.13
• Parties may wish to enter into a contract to make a will that will
be binding and effective over the rights of a subsequent spouse so
as to protect the interests of children after the death of one spouse
and a possible remarriage.14
• Parties contemplating a marital separation but intending to remain
by contract property rights—or, in those states that permit parties
to do so, support rights—in the event they later decide to live apart
or divorce.15
has engaged in marital misconduct may wish to settle property
issues and, to the extent permitted under state law, support issues,
10. Bergman v. Bergman, 428 P.3d 89 (Utah Ct. App. 2018).
11. See Arizin v. Covello, 669 N.Y.S.2d 189 (Sup. Ct. 1998); Rosenblatt v. Kazlow-
Rosenblatt, 655 N.E.2d 650 (Mass. App. 1995).
12. See Lund v. Lund, 849 P.2d 731 (Wyo. 1993) (abrogated by Vaughn v. State, 962 P.2d
149 (Wyo. 1998)).
13. See In re Estate of Soper, 598 S.W.2d 528 (Mo. Ct. App. 1980); see also In re Holtemann,
76 Cal. Rptr. 3d 615 (Cal App. 2008), vacated, 166 Cal. App. 4th 1166, 83 Cal. Rptr. 3d 385
(2008); O’Brien v. Collura, 898 A.2d 1075 (Pa. Super 2006); Kelln v. Kelln, 515 S.E.2d 789 (Va.
a device to effect estate planning objectives. See Black v. Edwards, 445 S.E.2d 107 (Va. 1994)
(whether parties intended joint will to constitute contract that became irrevocable on death of
14. See Gregory v. Estate of Gregory (In re Estate of Gregory), 866 S.W.2d 379 (Ark. 1993).
15. See Zipes v. Zipes, 599 N.Y.S.2d 941 (Sup. Ct. App. Div. 1993) (parties executed marital
agreement prior to reconciliation and lived together for six more years).
Published in Family Law Quarterly, Volume 52, Number 2, Summer 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
