Ohio’s New Postnuptial Agreement Law: Impact on Estate Planning for Married Couples

A new Ohio law allows married couples to enter into postnuptial agreements. Spouses can now amend an existing prenuptial agreement or enter into a completely new postnuptial agreement. This change creates new options for estate planning for married couples, especially those with second marriages or blended families.

Before the new law, couples could sign prenuptial agreements before they married, but Ohio prohibited postnuptial agreements. Spouses who had signed a prenuptial agreement were stuck with its terms with no option to amend, and couples could not create a postnuptial agreement after legally marrying.

That changed with Ohio Senate Bill 210, signed into law in December 2022 and effective March 23, 2023. Under the new law, to be valid, a postnuptial agreement must:

1. Be in writing and signed by both spouses;

2. Be entered into freely without fraud, duress, coercion, or overreaching;

3. Be made with full disclosure or full knowledge, and understanding, of the nature, value, and extent of the other spouse’s property; and

4. Not promote or encourage divorce or profiteering from divorce.

Like a prenuptial agreement, a postnuptial agreement designates which assets will remain separate, non-marital property and which assets will be marital property. Upon death or divorce, the other spouse may have rights to the marital property, but they are not entitled to the separate, non-marital assets.

Postnuptial agreements are an important tool in estate planning. For example, couples in second marriages may want to include a postnuptial agreement in their estate plan to solidify which assets their spouse will inherit and which assets they will leave to children from a prior marriage. Couples who remarry later in life after they have accumulated significant, separate assets often desire to keep their finances separate and leave most or all of their assets to their respective children.

Careful estate planning is crucial for married couples who wish to leave their assets to their children rather than each other. A simple will alone cannot accomplish that goal. Even if the will leaves everything to the children and nothing to the spouse, Ohio law gives the surviving spouse a right to at least a portion of the probate estate. A postnuptial agreement, in addition to a will or trust, can help ensure that a married person’s wishes for their estate come to fruition.

If you have questions about whether you should include a postnuptial agreement in your estate plan, consult with a local estate planning attorney. To learn more about estate planning in Northeast Ohio, contact Lewis Legal, LLC.