For more than 130 years, Ohio has strictly prohibited postnuptial agreements and spouses were not able to enter into agreements with each other that altered their spousal rights. Additionally, Ohio has restricted amendments and termination of prenuptial agreements.
The Ohio State Bar Association Estate Planning, Trust & Probate Section formed a Postnuptial Committee to analyze whether Ohio would join 48 other states in allowing spouses to enter into postnuptial agreements and to what extent. The recommendations were a joint effort with the Domestic Relations Bar, Probate Judges and Domestic Relations Judges.
The new law, O.R.C. §3103.61, provides that for a postnuptial agreement to be valid:
- The agreement must be in writing.
- Entered into freely, without fraud, duress, coercion or overreaching.
- Be made with full disclosure or full knowledge and understanding of the other spouse’s property.
- Not promote divorce or profiteering from divorce.
A valid postnuptial agreement will be treated the same as a valid prenuptial agreement in determining the spouses’ separate property. Additionally, a postnuptial agreement will be treated the same as a prenuptial or separation agreement in actions to set aside such agreements upon the death of one of the spouses.
Pros of the New Law
Some client benefits of the new law include the ability for each spouse to freely contract and agree to the financial aspects of their marriage. The law can provide certainty between spouses regarding their rights and legal obligations. The law can provide the ability to enter into or modify prior agreements to fit the spouses’ current needs/situation. Finally, stale prenuptial agreements may be updated to ensure a valid new agreement with new terms reflecting the changed circumstances when the old terms may no longer be relevant and may harm one spouse.
Independent Counsel
Each party must have separate, independent counsel to ensure that the agreement is entered into freely without fraud, duress, coercion and with full knowledge of the spouse’s rights and assets. The agreement should address anticipated changes in future circumstances (even though the agreement may be amended). Also, the agreement should clearly define separate and marital property and the rights each spouse is giving up; income earned and appreciation of separate property must be waived and the agreement should also address the treatment of commingling and tracing of separate property.
Full Disclosure of Assets
Each spouse needs to fully disclose assets to ensure each spouse is fully aware of the couple’s assets. The agreement must also address treatment of separate property which may increase in value, treatment of jointly held property and treatment of the marital residence.
Estate Planning Document Updates
Estate planning documents may need to be amended to satisfy the terms of the agreement and language should be included to amend and terminate the agreement. Entering into a postnuptial agreement will require time, planning and care to make sure the agreement operates as intended and is valid and enforceable.
If you or someone you know has any questions regarding the application of this new Ohio law, please contact Estate Planning Attorney Susan L. Friedman (SLF@kjk.com; 216.736.7272) or contact Family Law Attorney John D. Ramsey at (JDR@kjk.com; 216-736-7289) and see Major Shift in Ohio Law Now Permits Postnuptial Agreements.