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Bar News - November 15, 2013


Family Law: Validation of Postnuptial Agreements Opens New Area of NH Law

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What was once an open question in New Hampshire – whether postnuptial agreements are valid – has now been resolved by the New Hampshire Supreme Court in its recent decision in Estate of Richard B. Wilber.

This case arose out of the 9th Circuit Court – Nashua Probate Division where a wife filed a claim against her late husband’s estate contesting his will, in which he had left her nothing. Wilber and his wife had been married for 50 years. A few years before Wilber’s death, he and his wife executed an agreement in which each spouse transferred property to the other, as well as a reciprocal agreement for each spouse not to make any claims against their respective properties during the spouse’s life or after a spouse’s death.

The question in Wilber was whether his widow’s request for a spousal share (See, RSA 560:10) in her husband’s estate was valid, or whether she waived that right by execution of the postnuptial agreement, and whether postnuptial agreements are valid in New Hampshire, absent statutory authority and without the United States Supreme Court recognizing their validity.

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The NH Supreme Court defined a postnuptial agreement as “an agreement that determines a couple’s rights and obligations upon divorce” or death, but, unlike a prenuptial agreement, “is entered into after a couple weds but before they separate,” according to Wilber.

In discussing recent trends in the law, the NH Supreme Court cited the general recognition of postnuptial agreements among courts of different states (Kansas, Massachusetts, California, Connecticut and New York), despite the lack of legislative approval. The Court found no compelling reason to depart from that trend and held that postnuptial agreements may be enforced in New Hampshire.

The trial court had struck down the Wilbers’ postnuptial agreement, holding that it lacked “fundamental fairness in that there is no accompanying financial disclosure document or any indication that one was provided, and there was no indication that Mrs. Wilber was provided with or offered legal counsel,” but the Supreme Court reversed and remanded that decision.

In its decision, the Supreme Court discussed the legal standard used to invalidate (or attempt to invalidate) a prenuptial agreement, and held that the wife failed to meet her burden to demonstrate that the agreement was unfair in this case. The Court held that there was no evidence submitted that suggested fraud, mistake, or duress. The Court also noted testimony from the husband’s son, who stated that Mrs. Wilber had requested that the agreement be drawn up and had dictated its terms.

Further, the absence of accompanying financial disclosures did not in itself establish that a material fact was withheld from the wife, or that the agreement was obtained through such nondisclosure. That the wife was not provided with or offered legal counsel did not invalidate the agreement, according to the Court, which found that the husband and wife were free to enter into the contract without hiring counsel.

Additionally, there was no indication from the record that the wife did not understand the financial implications of the postnuptial agreement. She was married to her husband for 50 years and had paid the couple’s bills for some time. The Court cited a Wisconsin decision that states “independent knowledge of the opposing spouse’s financial status may be a substitute for disclosure.” Neither was there any indication based on the record that the agreement was unconscionable, the Court ruled.

Not only has Wilber shown that postnuptial agreements are enforceable in New Hampshire, but also that the Court may be prepared to relax its stance slightly in terms of the legal requirements for a valid and enforceable prenuptial or postnuptial agreement.


Jessica L. Ecker chairs the family law practice group at Donahue, Tucker & Ciandella and is a member of the firm’s estate planning and probate practice group. She can be reached at (603) 766-1686 or jecker@dtclawyers.com.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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