I recently sat with a client, a tech founder preparing for her second marriage. Her concern wasn’t the marriage—it was her legacy. She had two children from her first marriage and a company she’d built from the ground up. Her goal was clear: provide for her new husband if she passed away, but ensure the company and the bulk of her estate were stewarded by her children. For her, a marital agreement was not about planning for divorce. It was about deliberately structuring the next chapter of her family’s story.
This is the correct way to view marital agreements. They are too often seen through the narrow, pessimistic lens of a future separation. In my practice, I see them as powerful instruments of intentionality. They create a framework for a couple to define their financial partnership on their own terms, rather than accepting the default rules written into New York law.
More Than a Divorce Document
A marital agreement—whether a prenuptial agreement signed before the wedding or a postnuptial agreement signed after—is a contract. It allows two people to agree on how their assets and liabilities will be handled during the marriage and in the event of death or divorce. It is an act of profound communication.
The process requires each person to put their full financial picture on the table. It forces a conversation about expectations, financial styles, and long-term goals. What property will remain separate? What will be considered marital property? How will a family business be treated? Answering these questions before they become points of conflict is an exercise in prudence. It clarifies the path forward and removes ambiguity that can breed resentment.
This is not about a lack of trust. It’s about creating a shared understanding from a place of strength and mutual respect. Stewardship. By defining the financial terms of the partnership, a couple frees themselves to focus on building their life together, knowing a clear, fair plan is in place for any contingency.
How Marital Agreements Align with Your Estate Plan
The link between a marital agreement and an estate plan is critical—especially for blended families or when one partner brings significant assets to the marriage. The most potent example of this in New York involves the spousal “right of election.”
Under Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has a legal right to claim a large portion of their deceased spouse’s estate, typically one-third. This right exists regardless of what the will might say. If my tech founder client simply wrote a will leaving her company to her children, her new husband could still file for his elective share. This could force the sale of company stock or other key assets to satisfy his claim. Her entire legacy plan would be jeopardized.
A properly drafted marital agreement is one of the few legal instruments that can include a waiver of this spousal right of election. By signing the agreement, both parties can voluntarily agree to abide by the terms of each other’s estate plans. This ensures that assets intended for children, a family business, or a charitable foundation are passed on as intended. It transforms the agreement from a simple contract into a cornerstone of a multi-generational estate plan.
What Makes a Marital Agreement Enforceable?
An agreement is worthless if it isn’t enforceable. New York courts look for several key elements to determine an agreement’s validity. This isn’t about legal technicalities. It’s about fundamental fairness.
First, the agreement must be in writing, signed by both parties, and acknowledged with the same formality as a real estate deed. This underscores the seriousness of the document.
Second, there must be full and fair financial disclosure. Each party must provide a complete and honest accounting of their assets, debts, and income. Hiding assets is the surest way to have a court invalidate the agreement later. Transparency is non-negotiable.
Third, the agreement must be entered into voluntarily, free from duress or coercion. This is why we insist that each party have independent legal counsel. When both sides are represented by their own attorney, it shows the agreement was negotiated at arm’s length and that both individuals understood the rights they were waiving.
Finally, the terms cannot be “unconscionable” at the time of signing. This is a high bar, but an agreement so lopsided that it would shock the conscience of a reasonable person may be set aside. The goal is fairness, not the financial ruin of one party.
A marital agreement is a declaration of intent. It is a private contract between two people about how they will manage their financial lives and honor their obligations to each other and to their families. When done correctly, it provides clarity and security, allowing a marriage to begin—or continue—on a foundation of mutual understanding.
If you are contemplating marriage, or are already married and see the value in this level of clarity, the first step is a conversation with your partner. The next is to gain a full understanding of your financial landscape. We often begin this process by scheduling a confidential asset and liability review to map out what a potential agreement would need to address.
