§ 4.07 Amendment or Revocation of a Marital Agreement

• Jurisdiction: United States
• Publication year: 2021

§ 4.07 Amendment or Revocation of a Marital Agreement

A marital agreement can be amended or revoked during marriage. A clear way to effect such an amendment or revocation is to execute a written instrument that states the new intention of the parties. Absent such a written instrument, the behavior of the parties can effectuate an implied amendment or revocation, depending upon the language of the original agreement.⁴²⁹ For example, if the parties do not act during marriage in accordance with the agreement's terms, an implied amendment or revocation can be inferred.⁴³⁰ Other actions, such as mutually tearing up the agreement, can act as a revocation.⁴³¹ Actions that are inconsistent with the agreement can be perceived by a court as an implied amendment.⁴³²

The Uniform Premarital Agreement Act provides that a premarital agreement may only be revoked during marriage by a written agreement.⁴³³ It therefore appears that in states that have adopted this Act revocation by action during marriage will not be accepted.⁴³⁴ Note that, because the UPAA only addresses revocation during marriage, one could still argue that actions before marriage could revoke the agreement.

A Virginia court has held that, if prospective spouses sign a premarital contract, cancel the wedding, and then later marry, the wedding cancellation acts as a repudiation of the contract.⁴³⁵ The court noted that a postponement, not a cancellation, might be treated differently. In another case, where the parties signed a prenuptial agreement, cancelled the wedding, and married six months later, the court concluded that the contract was not revoked by the cancellation.⁴³⁶

When, after the agreement was signed, the parties postponed their wedding date for three months, a Texas court concluded that the agreement still applied.⁴³⁷

Even if parties waive any marital property rights in a prenuptial agreement, some shared or survivorship rights can arise if the parties own property in joint names or commingle their property into joint bank accounts.⁴³⁸

An Ohio court has ruled that an attempted amendment to a premarital agreement signed during marriage should not be enforced.⁴³⁹ This holding is based on the Ohio rule that postnuptial agreements should not be enforced.

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Notes:

^[429] For example, the agreement might contain a provision requiring a signed written instrument to amend or revoke the agreement.

^[430] See, e.g.:

Colorado: In re Marriage of Zimmerman, 714 P.2d 927 (Col. App. 1986).
Idaho:

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