Category: Premarital Agreements

Waiver of Estate Rights in a Prenuptial Agreement

This Week’s Blog by Andrew M. Eliot

  • In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive a minimum share of your estate (the “elective share”) upon your death
  • The “elective share” in Connecticut is comprised of the lifetime use of one-third of the value of all real and personal property owned by a party at the time of his or her death, after the payment of all debts and charges against that party’s estate
  • A spouse’s right to an “elective share” can be waived in a prenuptial agreement
  • It is not uncommon for parties entering into a prenuptial agreement to waive estate rights. Such waivers are most prevalent in matters where a party has children from a prior relationship, and wishes to ensure that his or her offspring will receive the entirety of that party’s estate upon his or her death

Typically, clients who are interested in entering into a prenuptial agreement are, at a minimum, seeking to protect their assets from a soon-to-be spouse in the event of a divorce.  However, as top divorce and matrimonial attorneys practicing in towns such as Greenwich and Westport will attest, many of our clients, particularly those who have accumulated substantial wealth prior to their anticipated marriage, are also interested in protecting their assets from a soon-to-be spouse in the event of their death. This sentiment most commonly arises in matters where a client is entering into a marriage later in life, and wishes to preserve his or her estate for a child or children from a previous marriage or relationship.  In such a scenario, prenuptial (or postnuptial) agreements can be a critical tool for estate planning purposes, as they are the only means by which a party can ensure that a spouse will not receive a share of his or her estate upon their death.

In order to fully understand this issue, it is first necessary to understand the basics regarding spousal inheritance rights.  In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive at least some minimum share of your estate in the event of your death, even if your Last Will and Testament states otherwise. (The amount of this minimum share—commonly referred to as the “elective share”—varies from state to state). Stated differently, absent an agreement in writing to the contrary, you may not, as a matter of law, disinherit your spouse. Instead, upon your death, your spouse will have the option of (a) receiving whatever was bequeathed to him or her in your will; or (b) retaining his or her elective share by “electing against the will.”  In Connecticut, a spouse who chooses to claim the elective share is entitled to the lifetime use of one-third of the value of all real and personal property owned by the other spouse at the time of his or her death, after the payment of all debts and charges against the estate (commonly referred to as a “one-third life estate”).

Notably, however, a spouse’s right to an “elective share” can be waived in a prenuptial agreement, assuming that the agreement is otherwise valid.  It is in this context that a prenuptial agreement can be used as an estate planning tool and, specifically, as a means of protecting assets from a spouse in the event of a divorce.

At Broder & Orland LLC, we have extensive experience negotiating and drafting legally enforceable prenuptial agreements at every level of complexity and sophistication, and can help ensure that your intentions with respect to your spouse’s inheritance rights are specifically addressed in your prenuptial agreement.

Prenuptial Agreements in Connecticut: Financial Disclosure

This Week’s Blog by Sarah E. Murray

At Broder & Orland LLC, we tell any person who seeks our advice in connection with the drafting and negotiation of a Prenuptial Agreement that the financial disclosures accompanying the Prenuptial Agreement are one of the most important aspects of the agreement. The reason that the financial disclosures are so important is because General Statutes Section 46b-36g(a)(3), which is applicable to all Prenuptial Agreements entered into after October 1, 1995, states that a Prenuptial Agreement will not be enforceable against a party opposing its enforcement if that party proves that, before the agreement was executed, he or she was not provided with “fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party.” In other words, a party to a Prenuptial Agreement can seek to have the Prenuptial Agreement set aside in the event of divorce if he or she can prove that the other party (typically the moneyed spouse) did not adequately disclose his or her assets or income.

Lack of adequate financial disclosure is one of the most common reasons that Fairfield County divorce litigants cite in favor of a claim that a Prenuptial Agreement should not be enforced. It is for this reason that parties to a Prenuptial Agreement need to take care in preparing their financial disclosures, which are typically attached to the Prenuptial Agreement. The question that clients ask is: What constitutes adequate financial disclosure for a Connecticut Prenuptial Agreement to be enforced? While there is no one answer, a review of Connecticut case law on this issue provides some guidance.

One of the more instructive cases on the issue of financial disclosure is Friezo v. Friezo, 281 Conn. 166 (2007). In that case, the trial court had found that the parties’ Prenuptial Agreement was unenforceable based on inadequate financial disclosure and the Wife not having reasonable opportunity to consult with counsel. The Husband appealed. The Supreme Court reversed the trial court’s orders, finding that the Prenuptial Agreement was enforceable. At the time of the divorce, the estate was worth approximately $23 million, including over $6.5 million of the Husband’s premarital assets. The Wife had claimed that her attorney did not show her the Husband’s financial disclosure at the time they met regarding the Prenuptial Agreement, though it was in his possession at that time. His financial disclosure showed his assets, one liability, and also reflected his income. The draft originally provided to the Wife’s attorney was the one attached to and incorporated into the parties’ Prenuptial Agreement. At trial, the Wife did testify that she had acquired substantial knowledge regarding the Husband’s finances prior to the parties’ marriage. The Wife claimed that the signing of the Prenuptial Agreement, which was 24 hours before the wedding, was the first time that she had seen the Husband’s financial disclosure.

The Supreme Court examined for the first time the meaning of “fair and reasonable” financial disclosure, as referenced in the statute, stating: “’[F]air and reasonable’ disclosure refers to the nature, extent and accuracy of the information to be disclosed, and not to extraneous factors such as the timing of the disclosure.” Id. at 183. The Court noted that the statute does not require that the financial disclosures be appended to the agreement. Id. The Supreme Court also looked to McHugh v. McHugh, 181 Conn. 482 (1980), the case governing the enforcement of Prenuptial Agreements entered into prior to October 1, 1995, in its analysis. In McHugh, the Supreme Court had pointed out that a party cannot knowingly waive his or her rights with respect to another party’s income or assets without sufficient knowledge as to the other party’s financial circumstances. “[F]inancial disclosure in Connecticut must be understood as a burden to inform borne solely by the disclosing party.” Id. Therefore, the focus is on the actions of the disclosing party, rather than on the party to whom disclosure is being made. The Supreme Court further stated:

The overwhelming majority of jurisdictions that apply this standard do not require financial disclosure to be exact or precise….We agree with the majority of jurisdictions that a fair and reasonable financial disclosure requires each contracting party to provide the other with a general approximation of their income, assets and liabilities, and that a written schedule appended to the agreement itself, although not absolutely necessary, is the most effective method of satisfying the statutory obligation in most circumstances.

Id. at 189-91 (Citations omitted; emphasis added)

In Friezo, the Supreme Court ultimately determined that, under the McHugh analysis discussed herein, the Husband’s financial disclosure was “more than adequate” to allow the Wife to waive her statutory rights, as it provided her with his gross income from all sources for the year prior and listed his assets (most of which were valued individually) and liabilities. The trial court had not found that the financial disclosure was inaccurate or incomplete, but rather that the Wife did not have the expertise to understand it.  The Supreme Court responded “[w]hen the burden is on each party to inform, as established in McHugh, the test for adequate disclosure need not take into account or depend on the capacity of the receiving party to understand or digest the information received.”  Friezo, 281 Conn. at 192.  Furthermore, whether the Wife had sufficient time to review the disclosure does not go to the issue of whether it was fair and reasonable.  Id. at 194.  Justice Norcott dissented, stating that he would have found the financial disclosure to be inadequate for failing to fully explain the assets listed (particularly certain partnership interests).

In Oldani v. Oldani, 132 Conn. App. 609, 624 (2012), the trial court determined that the parties’ Prenuptial Agreement was enforceable. At the time of the signing, financial disclosures were attached to the Prenuptial Agreement. The Husband’s net worth at that time was over $5 million. His disclosure listed assets and liabilities itemized by category, along with schedules that provided additional details regarding bank accounts, notes, loans. He also included a schedule listing 11 commercial real estate properties in which he had an interest, including his percentage ownership, the replacement value, the mortgage debt, annual mortgage payments, and the net equity. The disclosure also included the gross rents received, as well as the annual operating expenses and “NOI” (net operating income). The disclosure did not specifically set forth his income, but the trial court found that there was sufficient information from which to extrapolate it. The Appellate Court found that the Husband had failed to provide a fair and reasonable disclosure of his income prior to the Prenuptial Agreement being signed. The word “income” did not even appear on the disclosure.

In contrast, in Beyor v. Beyor, 158 Conn. App. 752 (2015), the trial court enforced the parties’ Prenuptial Agreement and the Wife appealed, claiming that the Husband had failed to disclose his Schedule E income on his financial disclosure. The Appellate Court compared this case to Oldani, and noted that what is fair and reasonable financial disclosure may depend on the circumstances of the case.  Id. at 764. The Appellate Court found that there was fair and reasonable financial disclosure. Although the Husband had not disclosed his Schedule E income, he had disclosed the business interests that were the source of that income and gave a value to those interests.

The above cases are just a sampling of cases regarding the sufficiency of financial disclosures in connection with Connecticut Prenuptial Agreements. As the case law discussed in this article demonstrates, each case is fact specific, but, generally speaking, the more comprehensive the financial disclosure, the better.


At Broder & Orland, LLC, we often consult with divorce clients from Greenwich, Stamford, Darien, New Canaan, and Westport who entered into Prenuptial Agreements prior to getting married. Naturally, their first question when they arrive in our office is whether or not their Prenuptial Agreement is enforceable. They want to know how likely it is that a Court would uphold the terms of their Prenuptial Agreement if their case were to go to trial.

In some divorce cases, the parties agree at the time of the divorce to abide by the terms of the Prenuptial Agreement. In those relatively simple cases, the divorce judgment will incorporate the provisions of the Prenuptial Agreement and the parties can agree upon any issues not set forth in their Prenuptial Agreement.

Under Connecticut rules of practice, any party seeking the enforcement of a Prenuptial Agreement needs to let the other party know in his or her initial paperwork filed with the Court. For the Plaintiff seeking the enforcement of a Prenuptial Agreement, he or she pleads the Prenuptial Agreement in the divorce complaint. A Defendant seeking enforcement of a Prenuptial Agreement can file an Answer and Cross-Complaint seeking its enforcement. If a party does not wish to have the Prenuptial Agreement enforced, that party has sixty days from the date that the other party claims enforcement of the Prenuptial Agreement to file a reply requesting that the Prenuptial Agreement not be enforced. That party’s reply must state the grounds under which the party is seeking to have the Prenuptial Agreement invalidated. The purpose of these rules is to give each party ample notice early in the case as to the claims of the other with respect to the enforceability of the Prenuptial Agreement.



Many brides and grooms in Greenwich, Stamford, Darien, New Canaan, and Westport often wonder whether or not they should enter into a Prenuptial Agreement, sometimes called a Premarital Agreement, prior to getting married. In Fairfield County, Connecticut, Prenuptial Agreements have become more common in light of factors such as the high rate of divorce and the trend toward people marrying later in life after having amassed wealth.

In general terms, a Prenuptial Agreement is a contract that two people sign prior to getting married that outlines how assets and income will be treated in the event of a divorce, and oftentimes, when one spouse predeceases the other. These agreements can cover other topics as well, such as how a couple will share expenses after they are married or how a marital home will be purchased and maintained during the marriage. A Prenuptial Agreement can be as comprehensive and detailed as a particular couple wants to make it. At Broder & Orland, LLC, we tailor each Prenuptial Agreement to suit a particular couple’s needs.