Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act (UPAA) was proposed and recommended for enactment in all the states by the National Conference of Commissioners on Uniform State Laws. The UPAA was intended to be relatively limited in scope, applying to agreements that are between prospective spouses made in contemplation of and to be effective upon marriage. The UPAA has been adopted by a majority of states.

Definitions

The UPAA defines a ''premarital agreement'' as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. It requires that a premarital agreement be in writing and signed by both parties and that a premarital agreement becomes effective upon the marriage of the parties. The UPAA does not deal with agreements between persons who live together but who do not contemplate marriage or who do not marry. Nor does it provide for postnuptial, separation or oral agreements. The UPAA defines "property" as an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings. The definition of premarital agreement set forth in the UPAA is limited to an agreement between prospective spouses made in contemplation of and to be effective upon marriage. Agreements between persons living together but not contemplating marriage are outside the scope of this Act.

All Forms of Property and Interest Embraced by UPAA

The UPAA is designed to embrace all forms of property and interest therein. These may include rights in a professional license or practice, employee benefit plans, pension and retirement accounts, and so on. Agreements that are embraced by the act are permitted to deal with a wide variety of matters, including spousal support.

Unenforceable Premarital Agreements

The UPAA sets forth the conditions under which a premarital agreement is not enforceable. An agreement is not enforceable if the party against whom enforcement is sought proves that he or she did not execute the agreement voluntarily or that the agreement was unconscionable when it was executed and, before execution of the agreement, the following occurred:

• he or she was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
• he or she did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
• he or she did not have, or reasonably could not have had, an adequate knowledge of the property and financial obligations of the other party.

Even if the above conditions are not proven, if a provision of a premarital agreement modifies or eliminates spousal support, and that modification or elimination would cause a party to be eligible for support under a program of public assistance at the time of separation, marital dissolution, or death, a court is authorized to order the other party to provide support to the extent necessary to avoid that eligibility.

Formalities

A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration. Many states also require other formalities, including notarization or an acknowledgement but may then permit the formal statutory requirement to be avoided or satisfied subsequent to execution. The UPAA dispenses with all formal requirements except a writing signed by both parties. The agreement may consist of one or more documents intended to be part of the agreement and executed as required by this section. The marriage is the consideration for a premarital agreement. A marriage is a prerequisite for the effectiveness of a premarital agreement under this act. This requires that there be a ceremonial marriage.

Additionally, a premarital agreement is a contract. As required for any other contract, the parties must have the capacity to contract in order to enter into a binding agreement. Those persons who lack the capacity to contract but who under other provisions of law are permitted to enter into a binding agreement may enter into a premarital agreement under those other provisions of law.

Effect of Marriage

A premarital agreement becomes effective upon marriage. Thus, a marriage is a prerequisite for the effectiveness of a premarital agreement. As a consequence, the act does not provide for a situation where persons live together without marrying. In that situation, the parties must look to the other law of the jurisdiction.

Amendment or Revocation

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. Therefore, the same formalities of execution for an amendment or revocation of a premarital agreement are required as those for its original execution.

Enforcement

A premarital agreement is enforceable if enforcement would not have been unconscionable at the time the agreement was executed. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result. A void marriage does not completely invalidate a premarital agreement but does substantially limit its enforceability. Where parties have married and lived together for a substantial period of time and one or both have relied on the existence of a premarital agreement, the failure to enforce the agreement may be inequitable. The court has discretion to enforce the agreement to the extent necessary to avoid the inequitable result.

Limitation of Actions

Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.