§ 4.05 Formal Requirements Applicable in Some States

• Jurisdiction: United States
• Publication year: 2021

§ 4.05 Formal Requirements Applicable in Some States

[1]—Recordation or Acknowledgment

Marital contracts must be recorded in some states in the appropriate local office.³³⁷ In these states, both signatures must be acknowledged.³³⁸ Some states only require acknowledged signatures; recordation is unnecessary.³³⁹

In the states that require acknowledged signatures, the effect of unacknowledged signatures is unclear. Some courts have concluded that lack of acknowledgment makes the agreement invalid;³⁴⁰ others have enforced such agreements.³⁴¹ In New York, if the spouses' signatures are not acknowledged, the agreement is invalid.³⁴² A New York court has held that an initially unacknowledged premarital agreement that was later acknowledged was enforceable.³⁴³ The Louisiana Supreme Court has held that, for an agreement to be valid, both spouses' signatures must be acknowledged before the wedding.³⁴⁴

If the state requires recordation of the marital contract, the effect of a failure to record is that the contract does not affect the rights of creditors of either spouse.³⁴⁵

[2]—Witnesses

Some states require a marital contract to be signed before a minimum specified number of witnesses.³⁴⁶ It is not clear whether failing to satisfy this requirement voids a marital agreement.³⁴⁷ In Georgia, noncompliance with the witness requirement renders the agreement void and unenforceable.³⁴⁸ There is some confusion in Georgia regarding what types of agreements must be witnessed.³⁴⁹

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Notes:

^[337] See, e.g.:

Arizona: Ariz. Rev. Stat. Ann. § 33-412.
Mississippi: Miss. Code Ann. § 89-5-3.
Tennessee: Tenn. Code Ann. § 66-24-101. In these states both signatures must be acknowledged.

^[338] See, e.g.:

Montana: Mont. Rev. Code Ann. § 40-2-312.
Washington: Wash. Rev. Code § 26.16.120 (postnuptial contracts).

^[339] See, e.g., Cal. Civ. Code § 5134. See also, Idaho Code § 32-922.

^[340] See, e.g.:

California: In re Nelson's Estate, 224 Cal. App.2d 138, 36 Cal. Rptr. 352 (1964).
Louisiana: Acurio v. Acurio, 224 So.3d 935 (La. 2017); Muller v. Muller, 72 So.3d 364 (La. App 2011); Ritz v. Ritz, 666 So.2d 1181 (La. App. 1995).
Nebraska: In re Dorshorst's Estate, 174 Neb. 886, 120 N.W.2d 32 (1983).
New York: Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376 (1997); Filkins v. Filkins, 303 A.D.2d 934, 757 N.Y.S.2d 665 (2003).

Later acknowledgment may validate an agreement. See Arizin v. Covello, 175 Misc.2d 453, 669 N.Y.S.2d 189 (1998). See also, Bloomfield v. Bloomfield...