Prenuptial and Postnuptial Agreements for Same‑Sex Couples

Marriage equality has brought new opportunities for same-sex couples to protect their relationships through thoughtful legal planning. In neighborhoods like Chelsea, the Upper West Side, and throughout Manhattan, a well-crafted prenuptial or postnuptial agreement can help clarify financial rights, safeguard individual assets, and prevent future disputes. A knowledgeable New York divorce attorney can guide couples through the state’s complex requirements, ensuring that their agreements are valid, fair, and enforceable under New York law.

For LGBTQ+ couples, these agreements carry additional importance, often intersecting with unique family-building and parentage considerations. An experienced NYC same sex divorce lawyer understands these nuances and can help craft an agreement that reflects the true scope of your relationship and your shared future. To learn more about how to protect your family and assets with a customized marital agreement, contact Juan Luciano Divorce Lawyer at (212) 537-5859 today.

New York’s Legal Requirements for an Enforceable Marital Agreement

In New York, both prenuptial and postnuptial agreements must comply with the state’s domestic relations laws to be considered valid and enforceable. These agreements are governed by New York Domestic Relations Law § 236(B)(3), which sets out strict formal requirements. An agreement that fails to meet these standards may be deemed invalid and unenforceable.

The Three Absolute Legal Requirements

• It must be in writing. New York courts will not recognize or enforce any oral or unsigned marital agreement. The document must clearly outline each party’s rights and obligations in writing.
• It must be signed (subscribed) by both parties. Both spouses must voluntarily sign the agreement to demonstrate mutual consent.
• It must be acknowledged in the same manner as a deed. The agreement must be properly notarized, a key formality that ensures authenticity and prevents future disputes about validity.

These technical elements are the foundation of any enforceable marital agreement. However, meeting these formalities alone is not enough. Courts also look closely at fairness, transparency, and voluntariness, which make up the three practical pillars of enforceability.

Full and Fair Financial Disclosure

To be secure and enforceable, a prenuptial or postnuptial agreement should include full and honest disclosure of each party’s financial situation, including assets, debts, income, and obligations.

While some case law suggests that disclosure is not an explicit statutory requirement for validity, failing to provide it can expose the agreement to claims of fraud or concealment. If one spouse can prove they were misled or that the other hid assets, the court may refuse to enforce the agreement.

In practice, comprehensive financial disclosure is a non-negotiable best practice. It promotes transparency, trust, and long-term enforceability.

Independent Legal Counsel

Each party should be represented by its own independent attorney who can explain their rights, review the document, and negotiate terms.

Independent counsel is the most effective safeguard against later claims of duress, coercion, or misunderstanding. Even if one spouse covers the other’s legal fees, this does not automatically constitute coercion, but the attorneys must operate independently to ensure fairness and informed consent.

Freedom from Duress and Unconscionability

The agreement must be signed voluntarily, without pressure or undue influence.

Courts may invalidate an agreement if it is found to be unconscionable, meaning so one-sided that no reasonable person would agree to it. Importantly, a threat to cancel the wedding if the agreement is not signed does not generally amount to legal duress under New York law.

Postnuptial agreements, entered into after marriage, are subject to the same formalities under DRL § 236(B)(3). However, courts often scrutinize them more closely. Once a couple is married, they owe each other a fiduciary duty, which is the highest duty of trust, fairness, and good faith.

Because of this elevated duty, courts expect even greater transparency and fairness in postnuptial agreements than in prenuptial ones. Full financial disclosure and truly independent legal counsel become even more critical to ensure the agreement withstands judicial review.

Correcting the Legal Timeline: Protecting Long-Term Relationships and Pre-Marriage Assets

For many same-sex couples, one of the most important reasons to create a prenuptial agreement is to bridge the gap between the reality of your relationship and what the law recognizes as your marriage.

Before the 2015 Obergefell v. Hodges decision legalized same-sex marriage nationwide, countless LGBTQ+ couples in New York had already built full and lasting partnerships, often spanning decades. You may have bought property together, raised children, shared household expenses, or supported each other’s personal and professional growth long before your marriage was legally recognized.

Many same-sex couples also marry later in life, often with significant assets, investments, or businesses already in place. A carefully drafted prenuptial agreement can ensure that your long-term partnership history is acknowledged and protected under the law.

The Problem: New York’s Equitable Distribution Rules

New York is an equitable distribution state, which means that in a divorce, only marital property, meaning assets acquired after the wedding date, is subject to division by the court.

This rule often produces an unfair result for same-sex couples who shared finances and assets long before they were able to marry legally. For example:

• That Manhattan co-op you bought together in 1999, titled in only one partner’s name for mortgage purposes.
• The 15 years of shared financial effort before your 2011 wedding, when you finally gained access to legal marriage rights.

Under the default law, that co-op might be treated as the separate property of the titled spouse, with only the increase in its value after the wedding considered marital. This approach effectively erases years, sometimes decades, of shared economic life.

How a Prenuptial Agreement Can Protect Your History and Assets

A well-crafted prenuptial agreement allows you to step outside of New York’s default property rules and create an arrangement that aligns with your unique relationship. It can:

• Define Separate Property: Identify and protect the assets you each bring into the marriage, including inheritances, family businesses, or real estate. For example, if you own a brownstone in Park Slope and your partner owns a condo in Midtown, clearly defining ownership before the marriage can help prevent misunderstandings and ensure that certain assets remain individually owned or designated for children from a prior relationship.
• Redefine Marital Property: Perhaps the most powerful feature of a prenuptial agreement is the ability to treat certain pre-marital assets as marital property. This means you and your spouse can agree to recognize assets acquired during your pre-marriage cohabitation, such as property, savings, or investments, as jointly owned. Doing so ensures that your shared financial history receives the legal acknowledgment it deserves.
• Manage Debt Responsibility: A prenup can also clarify which debts belong to whom. Each partner can remain responsible for debts incurred before the marriage, protecting the other spouse from potential liability or creditor claims.

A prenuptial agreement is more than just a legal safeguard. For same-sex couples, it is also a tool for restoring fairness and recognition to relationships that existed long before the law caught up. By thoughtfully addressing the “partnership timeline” gap, you ensure that your years together are not only honored emotionally but also protected legally.

Juan Luciano, NYC Same-Sex Divorce Lawyer

Postnuptial Agreements: When and Why to Plan After “I Do”

If you are already married, it is not too late to put a financial plan in place. A postnuptial agreement can accomplish many of the same goals as a prenuptial agreement, while providing additional flexibility to address changes that occur during marriage.

Many same-sex couples in New York married during the joyous period following the legalization of marriage equality in 2011 or 2015 and did not have the opportunity or desire to create a prenuptial agreement at the time. Others may now be facing new financial circumstances that make planning essential.

Common Reasons to Create a Postnuptial Agreement

Couples choose to enter into postnuptial agreements for a variety of reasons, often to protect assets, clarify expectations, and strengthen their financial partnership. Common motivations include:

• Starting a New Business: One spouse may launch a new business during the marriage and wish to ensure that it remains their separate property in the event of divorce. A postnuptial agreement can help shield the business from equitable distribution and provide clarity about ownership and income.
• Receiving an Inheritance: A postnuptial agreement can specify that an inheritance received during marriage remains separate property. This helps preserve family assets and prevents future disputes about how inherited wealth is treated.
• Appreciation of Separate Property: If one spouse owned a business, property, or investment before marriage that has grown in value due to the other spouse’s efforts or contributions, the couple can use a postnuptial agreement to define a fair and equitable way to share that appreciation.
• Clarifying Financial Responsibilities: Some couples use postnuptial agreements to set clear expectations about finances, household expenses, or debt management. Establishing these terms in writing can reduce future conflict and promote greater harmony in the relationship.

Reason for a Postnuptial Agreement	Description
Starting a New Business	One spouse launches a business during the marriage and wants it to remain separate property in case of divorce.
Receiving an Inheritance	A spouse inherits assets during the marriage and the couple wishes to clarify that the inheritance remains separate property.
Appreciation of Separate Property	A spouse had separate property, such as a business, investment, or real estate, that increased in value due to joint efforts, and the couple wants to define how that appreciation will be shared.
Clarifying Financial Responsibilities	The couple uses the agreement to set expectations around finances, debt management, and household expenses.

The Importance of Careful Drafting

Because spouses owe each other a fiduciary duty once married, postnuptial agreements are reviewed more closely by New York courts than prenuptial agreements. Courts look for fairness, transparency, and voluntariness in every detail.

For this reason, any postnuptial agreement must be drafted and reviewed by experienced legal counsel who understands both New York’s marital property laws and the unique needs of LGBTQ+ couples. Skilled legal guidance ensures that your agreement is not only fair and comprehensive but also enforceable if ever challenged.

The Critical Intersection of Marital Agreements, Assisted Reproductive Technology, and Parentage

For many LGBTQ+ families, building a family involves Assisted Reproductive Technology (ART). New York is considered one of the most ART-friendly states in the country, and the passage of the Child-Parent Security Act (CPSA) in 2021 was a major legal milestone.

The CPSA legalized compensated gestational surrogacy and established clear legal pathways to parentage, providing same-sex couples with long-overdue security and recognition. One of the most significant features of the CPSA is the ability to obtain pre-birth orders (PBOs), which formally establish parentage before the child is born. This ensures that both intended parents are legally recognized from the moment of birth.

Understanding the Limits of a Marital Agreement

While marital agreements can play a crucial role in protecting your family’s financial and parental intentions, it is important to understand their limits.

Under New York law, a prenuptial or postnuptial agreement cannot determine child custody or waive child support. Courts always retain the authority to decide issues of custody and support based on the best interests of the child at the time of separation or divorce. No private contract can override that legal principle.

What a Marital Agreement Can Accomplish for LGBTQ+ Families

Although marital agreements cannot dictate custody outcomes, they can still serve as valuable planning tools for family-building through ART. Specifically, a marital agreement can:

• Address Financial Responsibilities: It can outline who will be financially responsible for ART-related expenses, including IVF procedures, egg or sperm donation, and surrogacy contracts. The agreement can also clarify what will happen to stored embryos, including who will control their use or disposition in the event of divorce or death.
• Provide Financial Security for Children: A marital agreement can designate assets or funds for the benefit of your children. For example, it can establish trusts, allocate education accounts, or specify life insurance beneficiaries to ensure long-term financial protection.
• Establish Intent to Co-Parent: Written documentation of shared parental intent is powerful evidence in the event of a custody or parentage dispute. If one parent’s rights are ever questioned, the marital agreement can demonstrate to a judge that both spouses intended to raise the child together as equal parents.

Legal Parentage Protection Beyond a Prenup

While New York’s Child-Parent Security Act and the state’s marital presumption (which assumes that a child born during a marriage is the legal child of both spouses) offer significant protections, they are not absolute.

Family law is state-specific. If your family moves to or even travels through a state that does not recognize LGBTQ+ parental rights, that state’s courts are not required to honor a New York birth certificate listing both parents. This creates a serious risk that a non-biological parent’s rights could be challenged or denied.

The only legal safeguard that guarantees recognition of parentage in all 50 states is a court-issued adoption order. Adoption judgments are protected under the Full Faith and Credit Clause of the U.S. Constitution, which means every state must honor them.

For that reason, every non-biological parent should complete a Second-Parent Adoption or Step-Parent Adoption, even if both names already appear on the birth certificate.

Why a “DIY” Agreement Is a Liability, Not a Solution

It can be tempting to use a do-it-yourself or online prenuptial agreement template to save money. However, this approach can create significant legal risk rather than protection.

Generic templates are not designed to address the complex and deeply personal issues that often arise in same-sex marriages under New York law. They are too broad, too simplistic, and often fail to comply with the state’s strict legal requirements for enforceability. As a result, a “DIY” agreement can end up being completely useless in court.

A standard online template cannot:

• Properly redefine marital property to reflect a long-term partnership that began before the Obergefell v. Hodges decision.
• Address the unique financial and parental intent issues connected to Assisted Reproductive Technology (ART), surrogacy, and the Child-Parent Security Act (CPSA).
• Advise you on the separate and equally important need for a Second-Parent Adoption to secure parental rights across all states.

These templates are built for a one-size-fits-all audience. They do not consider the lived realities or legal complexities of LGBTQ+ families in New York.

An agreement that is improperly drafted, executed, or notarized will not hold up in court. If your prenuptial or postnuptial agreement is found invalid, you lose all the protections you believed you had.

Without an enforceable agreement, you fall back into New York’s default equitable distribution system, which allows the court to decide how property and assets will be divided. This often leads to highly disputed divorce litigation, greater financial exposure, and significant emotional stress, the very outcomes couples hope to avoid by planning ahead.

Planning with Purpose: Protecting Your Love and Your Future

A strong marital agreement is more than a legal document—it is a reflection of trust, transparency, and commitment. For same-sex couples in New York, it provides an essential framework to protect your assets, honor your shared history, and secure your family’s future in a way that the law fully recognizes. Taking the time to plan thoughtfully today can prevent uncertainty and conflict tomorrow.

Many couples throughout Manhattan take a proactive approach to planning by seeking experienced legal guidance. Whether you’re from the Upper East Side or in Downtown, a knowledgeable same sex divorce attorney can ensure your agreement meets New York’s strict legal standards while addressing the unique financial and personal considerations of your relationship.

To learn how a customized marital agreement can help protect your interests and provide peace of mind for the years ahead, contact Juan Luciano Divorce Lawyer at (212) 537-5859 for a confidential consultation.