In anticipation of marriage some parties do not feel the need to discuss in detail a premarital agreement. At times it could feel that discussing in detail the terms for a premarital agreement can deromanticize the upcoming nuptials. The validity of a premarital agreement is important, as such the parties must enter into this agreement voluntarily. In determining whether a party entered into this agreement voluntary both parties must either be represented by legal counsel, in the alternative the unrepresented party could expressly waive legal counsel, after being advised to seek legal counsel. Although, premarital agreements can include boilerplate language regarding the unrepresented party’s waiver for legal counsel, the language included will usually not meet the statutorily requirements to consider this agreement valid.
Premarital agreements are fully enforceable so long as all of the requirements for Fam Code §1615 are meet. Recently, in Knapp v. Ginsberg (2021) B307559, the Second District Fourth Division found that even if an unrepresented party signed a premarital agreement with boilerplate language acknowledging that the parties were represented by independent legal counsel does not conclusively establish the legal representation as required for both parties. Further, the waiver for independent legal counsel must be expressly signed as a separate document. In Knapp v. Ginsberg, an unrepresented party signed a premarital agreement that focused on a marital home. W was represented and H was not represented. The parties’ premarital agreement provided that if H predeceased W, W would receive H’s one-half interest of the marital home free of any encumbrances. During the marriage, H executed several amended versions of a trust which acknowledge the parties’ premarital agreement. Additionally, his trust provided the funds to ensure that W received the marital home free of any encumbrances. Subsequently, H died and W tried to enforced H’s trust. However, the parties’ premarital agreement did not include a signed waiver of legal representation. The court determined that where a premarital agreement is executed by an unrepresented party who did not sign a waiver of legal representation as required by family code the agreement is void and cannot be enforced. Essentially, just because H acknowledge the existence of the agreement in a trust that did not provide for the validity of the premarital agreement. In this case, the premarital agreement was void, and W was not able to enforce the agreement.
Therefore, it is important to seek a legal consultation to ensure a potential unrepresented party has properly waive and meet all of the requirements in order for the premarital agreement to be valid and enforceable in the future. Opting for boilerplate language in a premarital agreement for fear of creating animosity between the parties can be more detrimental and costly in the future.
Written by: Julieta Sepulveda, Esq.
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