Three new laws enacted by the 134th Ohio General Assembly are scheduled to take effect this spring:
SB 210 Establishes postnuptial agreements and amends Domestic Violence definitions
SB 202 Prohibits disability as the sole basis to deny parenting rights; establishes the validity of a recorded real property instrument when signed by an attorney-in-fact; and other probate and judicial changes
HB 279 Amending laws regarding wrongful death claims
This Alert addresses Senate Bill 210 that takes effect March 23, 2023. Our Alert next week will highlight the changes arising out of Senate Bill 202 and House Bill 279 that take effect in April 2023.
Postnuptial Agreements, Modification and Termination of Prenuptial Agreements Now Recognized
The Ohio legislature passed Senate Bill 210 in December which establishes the recognition of postnuptial agreements in Ohio. Effective March 23, 2023, Ohio joins a vast majority of states to now recognize the validity and enforceability of a contract entered into between spouses that alters their rights under the Ohio Revised Code or a prior prenuptial agreement distributing property upon the termination of the marriage or the death of a spouse. This significant change will allow spouses to alter inheritance rights between them and modify or terminate prenuptial and postnuptial agreements.
Like creating a valid prenuptial agreement or separation agreement, a postnuptial agreement is held to a high standard in its negotiation, drafting, and execution. Statutorily, the postnuptial agreement must meet the following minimum standards: 1) it must be in writing and signed by both spouses; 2) entered into freely without fraud, duress, coercion, or overreaching; 3) negotiated with full disclosure or full knowledge and understanding of the nature, value, and extent of the property of both spouses; and 4) the terms may not promote or encourage divorce or profiteering by divorce. If the agreement meets these standards, consideration is not necessary.
Given these requirements, we recommend that attorneys take special care in documenting their processes. Ancillary documents to the agreement such as signed and notarized affidavits, acknowledgments, appendices, and even recordings (with parties’ consent) can help document due diligence, disclosure, and other important factors in creating valid pre- and postnuptial agreements. Such belt-and-suspender approaches may be helpful in discouraging future litigation contesting the validity of the agreement and ensuring its enforcement. Attorneys should also consider that the spouses, while perhaps in agreement with the terms of the postnuptial agreement, are highly likely to have adverse interests to each other and should have distinct legal representation.
Supported by the Ohio State Bar Association and its Estate Planning, Trust, and Probate Law Section Prenuptial Committee, along with the Ohio Judicial Conference, this new law may allow greater self-determination and financial security for married couples in Ohio. It will also require care, due diligence, and thoughtfulness in crafting an enforceable contract.
Domestic Violence – Definition of Person Eligible to Seek Relief Expanded
Senate Bill 210 also modified the definitions in R.C. 3113.31 and 3113.33 for domestic violence protection orders and domestic violence shelter. Effective March 23, 2023, the law will allow a minor to file a petition for a domestic violence protection order against an adult respondent, and or be provided shelter if the minor was in a dating relationship with the adult actor. The prior definition limited relief to adult petitioners. The current version of Amended Substitute Senate Bill 210 as enrolled is available here. To learn more about this topic, you can register for the Ohio State Bar Association On-demand CLE Post-Nuptial Background, Update and Practical Applications to SB 210.
As always, OBLIC is here to help! Please tell us how we may help further.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.