Kings County Surrogate Lopez-Torres has ruled against a wife attempting to set aside a prenuptial agreement in the Estate of Joseph Menahem. In a decision reported in the New York Law Journal on September 10th the court declined to nullify the agreement on grounds of undue influence, fraud or the lack of mental capacity to knowingly execute the agreement.

Prior to her marriage to the decedent, his wife Gita had been hospitalized for mental illness. Subsequently, after her discharge from the hospital, she went on to execute a prenuptial agreement providing that each party waived, among other things, the right of election against each other’s estate. Even with her illness, the wife went on to complete a program in medical computer technology from a business school receiving no grade lower than a "B".

When her husband died in May, 2004,the wife attempted to establish that her bipolar disorder left her unable to knowingly execute the prenuptial agreement that would now serve to bar her from inheriting the property belonging to her late husband which, by the terms of his will, would pass to his sons by a prior marriage.

Surrogate Lopez-Torres noted that a "duly executed prenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise. It is presumed to be valid in the absence of fraud." The court further referred to section 5-1.1-A(e)(2) of the Estates Powers and Trusts Law which sets forth the requirements for an effective waiver of a spouse’s right of election against the estate of a deceased spouse. Such a waiver or release must be in writing, signed, acknowledged and in "recordable" form which means that such a waiver must follow the same form as would be used to provide for the recording of a deed to real property.

Gita Menahem’s waiver of her right of election was found to conform to the requirements of the law.Given this and the proof as to her ability to succeed academically and to function normally, the Court found that even though she had battled mental illness for years,  she was unable to meet the burden of proving that she lacked the competence to execute the agreement prior to her marriage. One might also note that she had a substantial period of time during her marriage –when her husband was alive and when she was apparently functioning normaly — to challenge the prenuptial agreement but did not choose to do so until her husband died.