H. B. 2240
(By Delegate Doyle)
[Introduced January 14, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend chapter forty-eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eleven, relating
to the uniform premarital agreement act; defining terms;
setting forth requirements and content of agreement;
providing for the effect, amendment, revocation and
enforcement of such agreements; establishing statute of
limitations, application and construction of article; and
setting forth short title.
Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eleven, to read
as follows:
ARTICLE 11. UNIFORM PREMARITAL AGREEMENT ACT.
§48-11-1. Definitions.
As used in this article:
(a) "Premarital agreement" means an agreement between
prospective spouses made in contemplation of marriage and to be
effective upon marriage.
(2) "Property" means an interest, present or future, legal
or equitable, vested or contingent, in real or personal property
including income and earnings.
§48-11-2. Formalities.
A premarital agreement must be in writing and signed by both
parties. It is enforceable without consideration.
§48-11-3. Content.
(a) Parties to a premarital agreement may contract with
respect to:
(1) The rights and obligations of each of the parties in any
of the property of either or both of them whenever and wherever
acquired or located;
(2) The right to buy, sell, use, transfer, exchange,
abandon, lease, consume, expend, assign, create a security
interest in, mortgage, encumber, dispose of or otherwise manage
and control property;
(3) The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any
other event;
(4) The modification or elimination of spousal support;
(5) The making of a will, trust or other arrangement to
carry out the provisions of the agreement;
(6) The ownership rights in and disposition of the death
benefit from a life insurance policy;
(7) The choice of law governing the construction of the
agreement; and
(8) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute
imposing a criminal penalty.
(b) The right of a child to support may not be adversely
affected by premarital agreement.
§48-11-4. Effect of marriage.
A premarital agreement becomes effective upon marriage.
§48-11-5. Amendment; revocation.
After marriage, a premarital agreement may be amended or
revoked only by a written agreement signed by the parties. The
amended agreement or the revocation is enforceable without
consideration.
§48-11-6. Enforcement.
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) That party did not execute the agreement voluntarily; or
(2) The agreement was unconscionable when it was executed
and, before execution of the agreement, that party:
(A) Was not provided a fair and reasonable disclosure of the
property or financial obligations of the other party;
(B) Did not voluntarily and expressly waive, in writing, any
right to disclosure of the property or financial obligations of
the other party beyond the disclosure provided; and
(C) Did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of
the other party.
(b) If a provision of a premarital agreement modifies or
eliminates spousal support and that modification or elimination
causes one party to the agreement to be eligible for support
under a program of public assistance at the time of separation or
marital dissolution, the circuit court, notwithstanding the terms
of the agreement, may require the other party to provide support
to the extent necessary to avoid that eligibility.
(c) An issue of unconscionability of a premarital agreement
shall be decided by the circuit court as a matter of law.
§48-11-7. Enforcement; void marriage.
If a marriage is determined to be void, an agreement that
would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
§48-11-8. Limitation of actions.
Any statute of limitations applicable to an action asserting
a claim for relief under a premarital agreement is tolled during
the marriage of the parties to the agreement. However, equitable
defenses limiting the time for enforcement, including laches and
estoppel, are available to either party.
§48-11-9. Application and construction.
This article shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this article among states enacting it.
§48-11-10. Short title.
This article may be cited as the "Uniform Premarital
Agreement Act."
NOTE: The purpose of this bill is to enact the Uniform
Premarital Agreement Act. This Act allows parties to a marriage
to contract prior to marriage with respect to property rights,
actions to be taken upon dissolution of the marriage, rights to
insurance proceeds upon death of either party, choice of
controlling law and any other matters not in violation of
criminal statutes or public policy. Child support cannot be
adversely affected.
This article is new; therefore, strike-throughs and
underscoring have been omitted.