Senate Bill S2269

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2269

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 18, 2011
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the general obligations law and the  domestic  relations
  law,  in  relation to establishing the public policy of the state that
  no antenuptial agreement become binding for thirty days  during  which
  period  either party may withdraw upon written notice to the other and
  requiring such agreements to be in writing and acknowledged

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings and declaration of intent.  The legis-
lature  finds that important rights may be surrendered by contracts made
between persons in contemplation of marriage and  declares  that  public
policy  requires  that  such rights not be surrendered precipitously and
without a period of time during which the parties  may  contemplate  the
consequences  of  their  intended  agreement,  consult  an  attorney for
advice, if necessary, and withdraw unilaterally if that be the  determi-
nation  upon  reflection.    Such  waivers of important rights should be
entered into knowingly and consciously. Moreover,  all  such  agreements
should  be  in  writing, subscribed by both parties, and acknowledged or
proven pursuant to requisite formalities, to reflect the  importance  of
the  undertaking.    Accordingly,  the  legislature declares this act to
reflect the public policy of this state  and  to  be  necessary  in  the
public interest.
  S  2.  Section 3-303 of the general obligations law is amended to read
as follows:
  S 3-303. Contracts in contemplation of  marriage;  ANTENUPTIAL  AGREE-
MENTS.  1.    [A]  EXCEPT  AS  PROVIDED IN THIS SECTION, A contract made
between persons in contemplation of  marriage,  remains  in  full  force
after the marriage takes place.
  2.  AS  USED IN THIS SECTION, AN "ANTENUPTIAL AGREEMENT" IS A CONTRACT
BETWEEN TWO PERSONS WHO  ARE  PROSPECTIVE  SPOUSES,  WHICH  IS  MADE  IN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07045-01-1
              

S. 2269                             2

CONTEMPLATION  OF  MARRIAGE  AND WHICH PROVIDES, AMONG OTHER THINGS, FOR
THE PROPERTY, SUPPORT, INHERITANCE AND CUSTODIAL RIGHTS OF  THE  PARTIES
IN THE EVENT OF SUBSEQUENT DISPUTES BETWEEN THEM.
  3.  SUBJECT  TO THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION, AN
ANTENUPTIAL AGREEMENT, IN ORDER TO BE BINDING,  VALID  AND  ENFORCEABLE,
MUST BE IN WRITING, MUST BE SUBSCRIBED BY BOTH PARTIES, MUST BE ACKNOWL-
EDGED OR PROVEN IN THE MANNER REQUIRED TO ENTITLE A DEED TO BE RECORDED,
AND  MUST  CONTAIN THE ADDRESS WHERE THE NOTICE DESCRIBED IN SUBDIVISION
FOUR OF THIS SECTION IS AUTHORIZED TO BE  SERVED,  OF  EACH  PARTY  THAT
EXECUTES  IT.  NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO AFFECT THE
VALIDITY OF ANY AGREEMENT MADE PRIOR  TO  THE  EFFECTIVE  DATE  OF  THIS
SUBDIVISION.
  4. NO ANTENUPTIAL AGREEMENT SHALL BE BINDING, VALID OR ENFORCEABLE FOR
A  PERIOD  OF  THIRTY DAYS AFTER ITS ACKNOWLEDGMENT BY THE LAST PARTY TO
ACKNOWLEDGE  IT.  DURING  THE  PENDENCY  OF  THE  PERIOD  SUBSEQUENT  TO
EXECUTION  BUT  PRIOR TO ACKNOWLEDGMENT BY THE LAST PARTY TO ACKNOWLEDGE
IT, AND DURING THE PENDENCY OF THIS THIRTY DAY PERIOD AFTER ITS ACKNOWL-
EDGMENT BY THE LAST PARTY TO ACKNOWLEDGE IT, SUCH AGREEMENT SHALL REMAIN
INCIPIENT AND EXECUTORY ONLY, AND EITHER  PARTY  TO  THE  AGREEMENT  MAY
UNILATERALLY  WITHDRAW THEREFROM BY WRITTEN NOTICE SERVED UPON THE OTHER
PERSONALLY DURING SUCH PERIOD; OR BY MAILING THE ORIGINAL OF SUCH  WRIT-
TEN NOTICE TO THE OTHER PARTY, TO THE ADDRESS OF SUCH OTHER PARTY STATED
IN  THE  AGREEMENT,  DURING  SUCH  THIRTY  DAY PERIOD BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, AND BY MAILING DURING SUCH THIRTY  DAY  PERIOD
TO  SUCH ADDRESS A COPY OF THE ORIGINAL OF SUCH WRITTEN NOTICE BY FIRST-
CLASS MAIL TO SUCH OTHER PARTY. UPON SUCH WITHDRAWAL  EFFECTED  PURSUANT
TO  THIS  SUBDIVISION,  SUCH  AGREEMENT  SHALL NOT TAKE EFFECT AND SHALL
BECOME NULL AND VOID. NOTHING IN THIS SUBDIVISION  SHALL  BE  DEEMED  TO
AFFECT THE VALIDITY OF ANY AGREEMENT MADE PRIOR TO THE EFFECTIVE DATE OF
THIS SUBDIVISION.
  5.  EVERY  ANTENUPTIAL  AGREEMENT,  IN  ORDER TO BE BINDING, VALID AND
ENFORCEABLE, SHALL CONTAIN A NOTICE OF THE RIGHTS GRANTED BY, AND OF THE
REQUIREMENTS OF, SUBDIVISIONS THREE AND FOUR OF THIS SECTION. NOTHING IN
THIS SUBDIVISION SHALL BE DEEMED TO AFFECT THE VALIDITY OF ANY AGREEMENT
MADE PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION.
  6. ANY PROVISION OR AGREEMENT WHICH IN  SUBSTANCE  WAIVES  THE  RIGHTS
GRANTED BY, OR THE REQUIREMENTS OF, THE PROVISIONS OF THIS SECTION SHALL
BE VOID AS AGAINST PUBLIC POLICY.
  S  3. Subdivision 3 of part B of section 236 of the domestic relations
law, as amended by chapter 595 of the laws of 2003, is amended  to  read
as follows:
  3. Agreement of the parties. [An] SUBJECT TO THE PROVISIONS OF SECTION
3-303  OF THE GENERAL OBLIGATIONS LAW IF EXECUTED ON OR AFTER THE EFFEC-
TIVE DATE OF THE AMENDMENT TO THIS SUBDIVISION WHICH ADDED THESE  WORDS,
AN  agreement  by the parties, made before or during the marriage, shall
be valid and enforceable in a matrimonial action if such agreement is in
writing, subscribed by the parties, and acknowledged or  proven  in  the
manner  required  to  entitle a deed to be recorded. Notwithstanding any
other provision of law, an acknowledgment of an  agreement  made  before
marriage  may  be  executed  before any person authorized to solemnize a
marriage pursuant to subdivisions one, two and three of  section  eleven
of  this chapter. Such an agreement may include (1) a contract to make a
testamentary provision of any kind, or a waiver of any  right  to  elect
against the provisions of a will; (2) provision for the ownership, divi-
sion or distribution of separate and marital property; (3) provision for
the  amount and duration of maintenance or other terms and conditions of

S. 2269                             3

the marriage relationship, subject to the provisions of section 5-311 of
the general obligations law, and provided that such terms were fair  and
reasonable at the time of the making of the agreement and are not uncon-
scionable  at the time of entry of final judgment; and (4) provision for
the custody, care,  education  and  maintenance  of  any  child  of  the
parties,  subject to the provisions of section two hundred forty of this
article. Nothing in this subdivision  shall  be  deemed  to  affect  the
validity  of  any  agreement  made  prior  to the effective date of this
subdivision.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have  become  a  law, and shall apply only to antenuptial agreements, as
defined in subdivision 2 of section 3-303  of  the  general  obligations
law, as added by section two of this act, which are executed on or after
the effective date of this act.