New Hampshire Supreme Court Rules That Postnuptial Agreements Are Enforceable

Written by: Patrick Sheehan, Esq., and Heather Devine, Esq.


Recently, in Re Estate of Richard B. Wilber, No. 2012-368, the New Hampshire Supreme Court held for the first time that postnuptial agreements are enforceable in New Hampshire. In Wilber, a husband and wife of approximately 50 years had entered into an agreement during their marriage in which the husband agreed to transfer certain property in Maryland to his wife. She, in turn, agreed to allow the husband to live at the Maryland property until his death. The husband also agreed not to make any claims on the Maryland property (either during his life or after his death) in exchange for which the wife agreed not to make any claims on his property in New Hampshire.
The husband died in 2010 and omitted his wife from his will. Despite their agreement, the wife filed a waiver by surviving spouse in probate court seeking a statutory share of the husband’s New Hampshire property pursuant to NH RSA 560:10. The husband’s estate opposed this claim, arguing that the postnuptial agreement precluded the wife from making claims on the New Hampshire property. The probate court, however, disagreed with the husband’s estate and ruled that the postnuptial agreement was unenforceable.

Postnuptial Agreements Ruled Enforceable

In its decision, the New Hampshire Supreme Court noted that courts in other states have recognized and enforced postnuptial agreements, and stated that it saw no reason to deviate from this trend. After ruling that postnuptial agreements can be enforced in New Hampshire, the Court turned its attention to the actual terms of the Wilber’s postnuptial agreement, ultimately reversing the probate court and finding it to be enforceable.

Level of Scrutiny Applied to Postnuptial Agreements?

The Court noted that other jurisdictions that enforce postnuptial agreements either: (1) require a greater showing of fairness than is required of prenuptial agreements; or (2) analyze both prenuptial and postnuptial agreements under the same standard. The Court explained that the principles governing prenuptial agreements should be looked to for guidance, but declined to decide whether postnuptial agreements in New Hampshire will be subject to a higher level of scrutiny. The Court, therefore, left unanswered the question of the minimal requirements for a valid postnuptial agreement. It is clear, however, that a postnuptial agreement must meet all of the requirements of a valid prenuptial agreement, if not more.

Bottom Line

Under the right circumstances, postnuptial agreements can be a valuable estate planning tool. For example, if a married person with children from a prior relationship wishes to leave more property to his or her children than to their current spouse, this objective can now be accomplished via a postnuptial agreement, rather than though other means, such as the establishment of a trust or through gifts made during one’s lifetime.

If you have any questions about the Court’s ruling, postnuptial agreements, or any other estate planning questions, please contact Patrick Sheehan or Elise Salek.