Marriages are one of the happiest events that can occur in one’s lifetime. Friends and family come together to celebrate the lifelong bond between two individuals that love each other. Understandably, the last thing on the soon-to-be-married couple’s minds is the division of property should their marriage end. While prenuptial agreements resolve the issue before the couple is married, postnuptial agreements are similar contracts that are not made until after the marriage has already taken place. Both agreements are intended to resolve the division of marital property in the event of a divorce. But, in Nebraska, only one is enforceable.

What is a Postnuptial Agreement?

A postnuptial agreement is “[a]n agreement entered into during marriage to define each spouse’s property events in the event of death or divorce. The term commonly refers to an agreement between spouses during the marriage at a time when separation or divorce is not imminent. When dissolution is intended as the result, it is more properly called a property settlement or marital agreement.”[1]

Essentially, a postnuptial agreement is just like any other contract. The parties can agree to divide their property, whether acquired before or during the marriage, however they choose.

Can my spouse and I enter into a Postnuptial Agreement in Nebraska?

The short answer is that postnuptial agreements are not enforceable in Nebraska. In Devney v. Devney[2], the Nebraska Supreme Court rejected the validity of postnuptial agreements in the state. The Court noted that the state Legislature had not passed a law permitting the agreements. The Court’s rationale for rejecting postnuptial agreements was made on public policy grounds, noting that the agreements have “a deleterious effect” on marriages and promote divorce rather than working through marital troubles. Notably, the Legislature does permit an agreement after marriage permitting a spouse to waive a right to inherit from their spouse’s estate.[3] However, this is a very narrow allowance and should not be read to allow for postnuptial agreements more broadly.

What are my options?

The easiest solution for couples that want some peace of mind about the “what ifs” of divorce or death is to address the issue before they get married. The avenue to do this is a prenuptial agreement. A prenuptial agreement is identical to a postnuptial agreement, except for the fact that it is agreed to before the couple ever gets married. No couple wants to think about their marriage ending before it even begins but, at least in Nebraska, this is the easiest solution.

Of course, sometimes it is too late. You may already be married and considering what may happen should you and your spouse separate or if there is a premature death. In this case, an agreement regarding inheritance from your spouse’s estate may be enforceable. Also, if separation proceedings have already begun, an agreement can be made and will be enforceable by the courts as a “property” or “marital” agreement.

[1] Black’s Law Dictionary, 1572 (10th ed. 2014).

[2] Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).

[3] See Neb. Rev. Stat. § 30-2316.