Pre Nuptial Waivers Not Enforceable Unless Properly Acknowledged

Pre Nuptial Waivers Not Enforceable Unless Properly Acknowledged

By Peter K. Kelly, Esq. Of Counsel, Ruskin Moscou Faltischek P.C.
 
A nuptial agreement which waives certain rights under equitable distribution must be in writing, subscribed by the parties and acknowledged in the manner entitle for a deed to be recorded.  Domestic Relations Law Section 236B(3).  Similarly a waiver of the Right of Election must also be in writing, subscribed by the maker and acknowledged as required by law for the recording of a conveyance of real property.  Estates, Powers and Trusts Law 5-1.1A(e)(2).  Thus, much of the case law interpreting these two statutes has been held applicable in either instances.

  

An unacknowledged nuptial agreement has been held to be invalid.  Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376 (1997) [enhanced opinion available to lexis.com subscribers].  The Court held that the acknowledgement serves two important purposes; first, to prove the identity of whose name appears on the instrument authenticating the signature, and second, to add formality to prevent haste and foster reflection and care.  Thus even where the parties admit that the signatures are authentic and there is no fraud or duress, an unacknowledged agreement is unenforceable. 

In a number of cases, the Courts have found where there is substantial compliance with the requirements of the Real Property Law, that an elective share waiver in a prenuptial agreement is enforceable.  Matter of Abady, 76 A.D.3d 525, 906 N.Y.S.2d 321 (2d Dep't 2010) [enhanced version]; Matter of Doman, 58 A.D.3d 625, 871 N.Y.S.2d 642 (2d Dep't 2009) [enhanced version]; Matter of Seviroli, 44 A.D.3d 962, 844 N.Y.S.2d 115 (2d Dep't 2007) [enhanced version]. 

On the other hand, where there has not been substantial compliance with the Real Property Law's acknowledgement requirements, the issue of the ability to cure a flawed acknowledgement has been repeatedly raised. 

The Court of Appeals, has recently spoken on whether a flawed acknowledgement of a nuptial agreement can be cured. Galetta v. Galetta, N.Y.L.J., May 31, 2013, at 22, col 1, 2013 N.Y. LEXIS 1339 (2013) [enhanced version].  The Court at first affirmed the rule in various Appellate Division cases since Matisoff that in situations where the document is signed but without a contemporaneous certificate of acknowledgement it may not be cured after the fact.  In Galetta, the Court stated that it is undisputed that the signatures on the documents are authentic and there is no claim that the agreement was procured through fraud or duress.  Nevertheless, the certificate of acknowledgement executed by the husband was flawed due to a typographical error omitting a key phrase.  The certificate failed to state that the notary confirmed the identity of the person executing the document or that the person was the individual described in the document.  The Court, relying on Matisoff, found that this was one of the important purposes of the acknowledgement requirement and thus the document was flawed. 

The Court then went on to consider whether the acknowledgement flaw could be cured.  The notary, almost a decade after the execution of the document, stated in an affidavit that it had always been his custom and habit to ask to confirm that the person signing the document was the same person named in the document and he was confident that he done so in this case.  The Court held that in a case such as this one where the signatures are being challenged because of a notarization error due to no fault of the signatories " a compelling argument" can be made that the door should be left open to cure a deficiency such as this one.  Nevertheless, the Court held that this notary's post execution affidavit of custom and practice was not sufficient to raise a triable issue of fact to defeat a motion for summary judgment.  The Court suggested that an affidavit describing a specific protocol invariably used and repeated might be satisfactory to raise an issue of cure of the flawed acknowledgement.    

The lesson for the matrimonial and estate and trust Bar is that counsel must adhere to the acknowledgement statute with extraordinary diligence or risk the unenforceability of a prenuptial agreement drafted with great care. 

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