Second Marriage Prenuptial Agreements

A second marriage starts from a different place than a first. One or both spouses may own a home outright, hold a retirement account built over decades, run a business, or support children from an earlier relationship. Some are still paying maintenance or child support under a prior judgment. A prenuptial agreement lets the couple decide in advance how those assets and obligations will be treated, rather than leaving the answer to New York's equitable distribution and elective share statutes.

The Legal Framework: Domestic Relations Law § 236(B)(3)

New York enforces prenuptial agreements under Domestic Relations Law § 236(B)(3). The statute permits an agreement made before marriage to address four categories: a contract to make a testamentary provision or a waiver of the right to elect against a will; ownership, division, or distribution of separate and marital property; the amount and duration of maintenance; and custody, care, and education of children, subject to the court's continuing authority under DRL § 240.

The statute imposes one formal requirement that trips up more agreements than any other. The document must be in writing, subscribed by both parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. That means each signature needs a notarial certificate of acknowledgment in the form set out in Real Property Law § 309-a. The Court of Appeals held in Galetta v. Galetta, 21 N.Y.3d 186 (2013), that a defective acknowledgment cannot be cured after the fact by the notary's later affidavit. The agreement in that case was unenforceable even though neither spouse disputed signing it. For a second marriage, where the whole point is often to protect assets for children, a missing or incomplete certificate defeats the purpose entirely.

Why Separate Property Rules Matter More the Second Time

Under DRL § 236(B)(1)(d), property acquired before the marriage is separate property. So is an inheritance or gift from a third party, and compensation for personal injuries. The default rule sounds protective, but two problems appear in practice.

First, appreciation. DRL § 236(B)(1)(d)(3) treats an increase in the value of separate property as separate, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." Take a spouse who owns a brownstone worth $900,000 on the wedding date. Twelve years later it is worth $1.6 million. If the other spouse managed renovations, paid for a new roof from joint funds, or simply argues that homemaking freed the owner to maintain the property, the $700,000 gain becomes a litigated question. A prenuptial agreement can state that the property and all appreciation remain separate regardless of contribution, closing that door.

Second, commingling. A premarital brokerage account that receives one deposit of marital earnings, or a house refinanced into joint names for a better rate, can lose its separate character. The agreement can provide that transmutation does not occur without a signed writing, and can list the accounts and parcels each spouse brings to the marriage in a schedule attached as an exhibit.

Protecting Children From a Prior Marriage: The Elective Share

This is the provision that distinguishes a second marriage agreement from most first marriage agreements. Under Estates, Powers and Trusts Law § 5-1.1-A, a surviving spouse is entitled to an elective share equal to the greater of $50,000 or one-third of the decedent's net estate. The net estate includes testamentary substitutes such as jointly held accounts, Totten trusts, revocable trust assets, and certain lifetime transfers. A will that leaves everything to the children does not override this right. The surviving spouse simply files a notice of election within six months after letters are issued, and no later than two years after death.

Consider a spouse with a $3 million estate who intends to leave it to two adult children. Without a waiver, the second spouse can elect to take $1 million, and the children share what remains. With a properly executed waiver, the estate passes as the will directs.

EPTL § 5-1.1-A(e) allows the right of election to be waived or released before or after marriage. The waiver must be in writing, subscribed, and acknowledged or proven in the manner required for recording a deed, the same standard as DRL § 236(B)(3). It may be absolute or conditional, and may cover a will already made or one to be made in the future. The waiver should also address the $50,000 exempt property set-aside under EPTL § 5-3.1 and the right to serve as administrator under Surrogate's Court Procedure Act § 1001, since those rights survive unless expressly released.

Retirement Accounts Require a Second Signature

A prenuptial agreement can allocate a 401(k) or pension as separate property for divorce purposes. It cannot, by itself, waive the survivor annuity rights that federal pension law grants to a spouse. Those rights belong to a spouse, and a fiancé is not yet a spouse. The agreement should therefore obligate each party to sign the plan's spousal consent form after the wedding, and should specify a deadline, such as thirty days after the marriage, with a remedy if a party refuses. IRAs are not subject to the same rule, but beneficiary designations still need to be updated to match the agreement.

Maintenance and Existing Support Obligations

DRL § 236(B)(3) permits a waiver or limitation of maintenance, provided the term was fair and reasonable when made and is not unconscionable at the time of entry of the final judgment. A court will scrutinize a total waiver more closely where one spouse leaves the workforce or where the marriage lasts twenty years rather than five. A common approach in a second marriage is a sliding scale: no maintenance if the marriage ends within three years, a fixed lump sum thereafter that increases with each year of marriage.

Child support for children of the new marriage cannot be waived below the guidelines in DRL § 240(1-b) without a specific opt-out recitation, and the court retains authority to review it. Support owed to children of a prior marriage is separate debt of the paying spouse, and the agreement should say so, along with any life insurance the paying spouse must maintain under the prior judgment. Debts brought into the marriage, including a former spouse's equitable distribution payout still being paid in installments, belong in the same section.

Timing, Disclosure, and Counsel

New York does not require independent counsel or financial disclosure for a prenuptial agreement to be valid. Skipping either one, however, invites the challenge described in our page on challenging a prenuptial agreement in New York. In Matter of Greiff, 92 N.Y.2d 341 (1998), the Court of Appeals held that where the relationship between the parties supports an inference that the stronger party exploited a position of trust, the burden shifts to that party to prove the agreement was free of fraud, duress, and overreaching. A signature obtained the night before the wedding, without disclosure, is the classic fact pattern.

A workable schedule for a June 15 wedding looks like this: exchange net worth statements and the last three years of tax returns in February; deliver a first draft by the first week of March; each spouse meets with separate counsel; sign by the end of April. Six weeks before the ceremony is a reasonable minimum. The agreement should recite that each party received disclosure, had the opportunity to consult counsel, and signed voluntarily. Attach the financial schedules as exhibits.

If the wedding arrives before the agreement is finished, do not sign a rushed version. A postnuptial agreement executed after the marriage under the same statute is a better outcome than a premarital agreement signed under time pressure. Note also that the agreement takes effect only upon a valid ceremonial marriage; New York does not recognize common law marriage, so a couple who lives together without marrying gains no protection from an unsigned or unexecuted draft.

Provisions Specific to Blended Families

• Residence: Whether the surviving spouse may remain in a home titled to the decedent, for how long, and who pays taxes and carrying costs during that period.
• Business interests: A statement that the business, its goodwill, and any increase in value remain separate, coordinated with the company's shareholder or operating agreement.
• Life insurance: A policy naming the new spouse in an agreed amount, in exchange for the elective share waiver.
• Gifts to stepchildren: Whether tuition or down payment assistance to one spouse's children counts as a marital expenditure or is charged against that spouse's separate property.
• Sunset clause: Whether certain provisions expire or soften after a stated number of years of marriage.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].