Appendix B (2) State Law Summary—postmarital Agreements

• Library: Premarital Agreements: Drafting and Negotiation (ABA) (2017 Ed.)

Appendix B(2)

State Law Summary—Postmarital Agreements

State	Key Statutes and Cases	Post Divorce Spousal Support Waiver Enforceable	Provisions re Waiver of Support during Marriage
Alabama	Ala. Code § 30-4-9 (2015) (spousal contracts subject to rules re contracts between parties in confidential relation); § 43-8-72 (right of election of surviving spouse, homestead allowance, exempt property and family allowance can be waived by postmarital agreement; waiver of rights must be made in writing after fair disclosure); Tibbs v. Anderson, 580 So. 2d 1337 (Ala. 1991) (Ala. Code § 43-8-72 and case law permit postmarital agreement governed by same standards as premarital agreement); Woolwine v. Woolwine, 549 So. 2d 512 (Ala. Civ. App. 1989); Barnhill v. Barnhill, 386 So. 2d 749, 751 (Ala. Civ. App.), cert, denied, 386 So. 2d 752 (Ala. 1980)); Ray v. Ray, 189 So. 895 (Ala. 1939) (H/W contracts subject to rules re confidential relations).	Tibbs v. Anderson, 580 So. 2d 1337 (Ala. 1991) (does not address spousal support but treats postmarital agreements same as premarital agreements, citing Ruzic v. Ruzic, 549 So. 2d 72 (Ala. 1989))
Alaska	Alaska Stat. § 34.77.010 (2015) (spouse must act in good faith re community property); § 34.77.090 (spouses can enter into a community property agreement and agree to disposition of property at death or divorce; agreement is valid if not unconscionable, executed voluntarily, with fair and reasonable disclosure or constructive knowledge); § 13.12.213 (rights of surviving spouse can be waived after marriage by written agreement executed voluntarily and, if unconscionable, with fair and reasonable financial disclosure, adequate knowledge, or express waiver of disclosure); § 25.24.160(e) (court distributes community property equitably at divorce unless parties have provided in community property agreement or trust for disposition); Estate of Lampert v. Estate of Lampert, 896 P.2d 214 (Alas. 1995) (spouses can sign postmarital agreement providing for disposition of property at death).	Alaska Stat. § 34.77.090 (2015) (subjects on which parties can contract; silent on spousal support)
Arizona	Ariz. R.C. § 14-2207 (2015) (surviving spouse rights may be waived by written contract after marriage; same validity standards as UPAA); Estate of Harber, 104 Ariz. 79, 449 P.2d 7 (1969) (spouses may enter into postmarital agreement governing property rights at divorce); Hanner v. Hanner, 95 Ariz. 191, 388 P.2d 239 (1964) (agreement to drop divorce can be sufficient consideration for postmarital agreement; spouses can agree to disposition of property at death or divorce); Austin v. Austin, 237 Ariz. 201, 348P.3d 897 (Ct App. 2015) (spouses entering into postmarital agreement regarding property rights at divorce are in confidential and fiduciary relationship).
Arkansas	Ark. Code Ann. § 9-11-301 (2015) (marriage contract must be in writing and acknowledged or witnessed); Stewart v. Combs, 368 Ark. 121, 243 S.W. 3d 294 (2006) (postmarital agreement is valid if meets criteria for valid contract; consideration need not be equal); Grover v. Grover, 101 Ark. App. 346, 276 S.W.3d 740 (2008) (applying Fla. law) (reconciliation agreement requires full financial disclosure); Simmons v. Simmons, 98 Ark. App. 12, 249 S.W. 3d 843 (2007) (marriage alone is not sufficient consideration for postmarital agreement); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999) (presumption of undue influence applies to shift burden to donee of interspousal transfer only when evidence shows donee was dominant party who occupied such superior position of dominance as to amount to duress, coercion, or undue influence).
California	Cal. Fam. Code § 721 (2016) (spouses can contract with each other re property rights at death or divorce; spouses in fiduciary relationship; highest duty of good faith and fair dealing; neither shall take unfair advantage); § 852(a) (transmutation of community property to separate property invalid unless made in writing by express declaration of spouse affected); § 142 (waiver of rights at death must be in writing; no consideration required; enforceable under either Cal. Prob. Code § 143 or § 144); § 143 (waiver enforceable as of right unless surviving spouse proves either (1) no disclosure or waiver of disclosure with advice of independent counsel, or (2) no independent representation); § 144 (waiver enforceable in court's discretion if fair disposition of spousal rights, or spouse had adequate knowledge; court can deny enforcement if unconscionable); Friedman v. Friedman, 100 Cal.App. 4th 65, 122 Cal.Rptr. 2d 412 (2002) (postmarital agreement enforceable at divorce re property division unless induced through mistake, undue influence, fraud, misrepresentation, false promise, concealment, non-disclosure, or other breach of confidential relationship); Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986) (interpreting California law; postmarital agreement subject to rules governing confidential relationship; when one spouse gains advantage, transaction presumed result of undue influence and that spouse has burden to prove fair, just and reasonable); Bolton v. MacDonald, 51 Cal 3d 262, 794 P.2d 911 (1990) (agreement to transmute community to separate property must expressly state that characterization of ownership of property is changed).	Cal. Fam. Code § 1620 (2016) (spousal agreement cannot alter legal relationship except for property provisions)	Cal. Fam. Code § 720 (2016) (spouses contract obligation of mutual support); § 4300 (subject to certain other statutory provisions, person shall support spouse); § 4301 (married person shall support spouse while living together); § 4302 (person not liable to support spouse living apart by agreement)
Colorado	Colo. Rev. Stat §§ 14-2-301-14-2-313 (2015) (Uniform Premarital and Marital Agreement Act (UPMAA), eff. 7.1.14); (parties may contract re disposition of property at death or divorce; parties may contract re support and attorney's fees provided not unconscionable at enforcement); § 14-2-309(1) (premarital agreement must be voluntary, with access to counsel, or notice of rights, and after adequate financial disclosure); § 15-11-213 (affirmation, modification, or waiver of marital right or obligation is only enforceable if contained in premarital or marital agreement compliant with UPMAA); Estate of Lewin, 42 Colo. App. 129, 595 P.2d 1055 (1979) (postmarital agreement valid unless fraud, concealment, or failure to disclose material information; burden on opponent at all times); In re Marriage of Bisque, 31 P.3d 175 (Colo. Ct. App. 2001) (postmarital agreement not incident to divorce governed by same standards of validity as premarital agreement; need not be conscionable).	In re Marriage of lkeler, 161 P.3d 663 (Colo. 2007) (court can review marital agreement waiver of spousal support and attorney's fees for unconscionability at divorce); In re Marriage of Christen, 899 P.2d 339 (Colo. Ct App. 1995) (spousal support provision which equalizes parties' incomes not unconscionable)
Connecticut	Conn. Gen. Stat. § 45a- 494 (2016) (rule against perpetuities does not apply to postmarital agreement); § 46b-36 (2016) (spouses have power to make contract with each other); Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011) (postmarital agreements are generally enforceable; are subject to special scrutiny; terms must be fair and equitable at execution and not unconscionable at dissolution).		Conn. Gen. Stat § 46b-37 (2016) (spouses not liable for each other's debts; spouses have mutual duty of support; both liable for necessaries; spouse who abandons liable for reasonable support of other spouse)
Delaware	13 Del. Code Ann. §§ 311-314 (2016); Del. Code Ann. § 311 (Married Women's Property Act; married woman may contract with husband); § 12-905 (spouses can waive right to election by written contract); § 13-1513 (b) (spouses can waive division of property at divorce in valid agreement); Stewart v. Stewart, 41A.3d 401 (De. 2012) (spouses are presumptively in confidential relationship, therefore, equity subjects their contract to higher degree of scrutiny); Conigliaro v. Conigliaro, 1992 Del. Fam. Ct. Lexis 41 (intended premarital agreement signed after marriage was valid postmarital agreement); Harry M.P. v. Nina M.P., 437 A.2d 158 (Supr.Q.Del. 1981) (validity of contract between spouses governed by contract principles).	13 Del. Code § 1512 (d) (2016) (spouses can waive alimony in valid agreement); Stewart v. Stewart, 41 A.3d 401 (De. 2014) (unconscionable spousal support can be modified)	13 Del. Code § 502 (2016) (duty to support spouse rests on other spouse); Hyland v. Southwell, 320 A.2d 767 (Del. Super. Ct. 1974) (in personal injury case addressing W's claim for medicals, court mentions erosion of historic disabilities of married woman in ruling W may be liable for own necessaries);
District of Columbia	D.C. Code Ann. § 46-601 (2016) (Married Women's Property Act; married person has right to contract with spouse); § 16-910 (spouses can exclude property from marital estate at divorce by postmarital agreement); § 19-113 (surviving spouse's rights can be waived in postmarital agreement).		D.C. Code § 46-601 (b)(2) (2015) (both spouses liable on debt for necessaries; § 16-916 (party can be ordered to support needy spouse).
Florida	Fla. Stat. Ann. § 708.09 (2015) (Married Women's Property Act; spouses can contract); § 732.702 (spouses can waive rights at death by written contract signed in front of two witnesses; parties must make fair disclosure; no consideration required except execution); Casto v. Casto, 508 So. 2d 330 (Fla. 1987) (postmarital agreements generally enforceable; may be set aside only if (1) result of fraud, duress, deceit, coercion, misrepresentation or overreaching; or (2) provisions for challenging spouse disproportionate, which shifts burden...