Two Types of Antenuptial Agreements

Historically, there are two types of antenuptial agreements. The first provided for what one spouse’s rights are upon the death of the other. The second provided for property or marital rights in the event of a divorce.

There has been a notable contrast between the views taken by courts in this country of provisions within antenuptial agreements setting forth the division of property and other rights and interests upon the death of one of the parties, contrasted to provisions in such agreements providing for, or affecting, property rights or conjugal and marital rights in the event of divorce. Gross v. Gross (1984), 11 Ohio St. 3d 99, at 102; 464 N.E.2d 500.

A. Antenuptial Agreements Establishing Rights Upon Death of Spouse

In the majority of jurisdictions, prospective spouses could contract as to the division of their property in the event of the death of one of the parties, and these agreements were generally enforced if the parties made a full disclosure of their assets and there was no showing of fraud, duress, or undue influence in the procurement of the agreement. Such provisions in an antenuptial agreement were generally recognized as being conducive to marital tranquility, and thus in harmony with public policy. Gross v. Gross (1984), 11 Ohio St. 3d 99, at 102-103; 464 N.E.2d 500.

In fact, these agreements have been enforced in Ohio for quite some time. The first reported case of this court which recognized the validity of an antenuptial agreement concerning the disposition of property upon the death of one of the parties was that of Stilley v. Folger (1846), 14 Ohio 610.

B. Antenuptial Agreement Establishing Rights Upon Divorce

But this was not always the case when it came to the second type of these agreements between the spouses as to what would happen if the parties terminated the marriage through divorce rather than death. Up until the early 1980s, the prevailing view of the law in the United States was that such contracts were considered as being made in contemplation of divorce and were held to be void as against public policy.