Too often, litigants (and sometimes attorneys) treat prenuptial agreements as documents that either don’t have to be followed and/or should be attacked as a matter of course to try to get the party who entitlements are limited in the prenuptial agreement more. Too often, as I have blogged about in the past, courts do not get to the bottom of the issue at the beginning of the case, to nip a hail Mary attempt to set aside agreement without any legal or factual basis in the bud or otherwise schedule discovery and a plenary hearing to determine whether it is an bona fide issue.
Another common grasping at straws tactic is to quibble about what basis words and phrases actually mean. This was the issue in the case of In the Matter of the Estate of Lynda Nathanson Sutton, deceased, an unreported (non-precedential) Appellate Division decision released on July 1, 2025.
It should not come as a surprise that the issue of the enforceability of a prenuptial agreement came out of an estate litigation. The reason for this is that almost, and in some cases, more important than what happens in the case of a divorce, prenuptial agreements also typically address what happens in the case of death. In fact, more often than not, prenuptial agreements permit a spouse to not only exclude the other but also include a waiver of the elective share which, absent that, would give a surviving spouse approximately one-third of the combined assets of the parties.
In this case, the parties were married in 1992 and signed a prenuptial agreement on the day before the wedding protecting the wife’s premarital assets. The marriage was less than ideal and the parties lived separately for long periods of time. In 2005, the husband even sent a letter to the wife disavowing their marriage. The evidence at trial was that the decedent did not seek a divorce because of her faith, but often stated her desire that the husband not inherit any part of her estate, particularly the property that she purchased prior to the marriage.
The trial court found that the premarital agreement was enforceable, including the waiver of the elective share.
Husband’s first defense was that he never signed the prenuptial agreement and was unaware of its existence. As in most cases, this was a losing argument and the trial court found that he was not credible as well as the fact that his testimony “was contradicted by multiple fact witnesses, exhibits, and even his own testimony between his deposition and at trial.”
I once had a prenup trial where the wife’s position was that she did not recall signing the prenuptial agreement though acknowledging that it was, in fact, her signature on the document. That argument wasn’t going anywhere either because her attorney for the agreement testified that the wife did, in fact, sign the agreement.
In Sutton, the husband attacked the wife’s Will but the trial court also found that the wife’s will disinheriting was both self-proving and valid.
He also claimed that the prenuptial agreement was not valid because he did not explicitly waive the elective share. This argument was rejected by both the trial court and the Appellate Division. The Court noted that the Agreement provided that:
“[a]ny property acquired during the marriage in the name of one party or under circumstances in which it is clear that such[] property was intended to be acquired separately by one party or where the source of the funds or assets by which such separate property was acquired is premarital assets, and shall remain the separate property of the party acquiring such assets.
The Agreement also provided that “[u]pon the death of either party, non-distributable property shall remain separate to be willed freely.”
The Prenuptial Agreement statute requires full disclosure or having adequate knowledge of the finances of the other. In Sutton, the parties’ agreement provided that:
“each party has full knowledge of the extent and approximate present value of all the property and estate
of the other, and of all the rights and privileges in and to such property and estate which would be conferred by law upon each in the property and estate of the other by virtue of the consum[m]ation of the contemplated marriage if this agreement were not otherwise entered into.
Now while many people argue balances sheets and documents must be attached to the agreement, and while that is likely a best practice, it may not be essential if the parties are aware of the assets, etc. of the other party. In this case, the Appellate Division held that the language quoted above, “…fulfills the requirements of N.J.S.A. 37:2-38(c) by showing both petitioner and decedent had adequate knowledge of the finances of the other.”
As to the husband’s argument that he did not specifically waive his right to the elective share, the Appellate Division disagreed and noted that:
“As discussed above, we affirm the trial court’s finding that the parties’ Agreement is valid. The Agreement explicitly waives “any and all right[s]” one party has “as a result of the marital relationship including, but not limited to, equitable distribution of property . . . or other similar statutory scheme for the division of marital property.”
This language waiving “any and all right[s]” to the property of the other spouse satisfies the requirements of N.J.S.A. 3B:8-10. The Agreement was executed by both parties and duly witnessed. The conduct of the parties throughout the marriage ratified the terms of the Agreement, since each spouse kept their property separate, including decedent’s house and petitioner’s apartments. We conclude petitioner affirmatively waived his right to an elective share of decedent’s estate.
The take away here is that when an agreement says waiving all rights, it means waiving all rights.
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