Prenups for Same-Sex Couples in New York: What Needs Special Attention?

Since the Marriage Equality Act took effect in 2011, same-sex couples in New York have had exactly the same marriage rights as everyone else, and the basic prenup rules are the same (see Part 1 of this series). But same-sex couples often have a few additional issues to consider.

1. What About the Years You Lived Together Before Marriage?

Many same-sex couples shared a life for years before they could legally marry. New York law, however, counts marital property only from the date of marriage, and New York does not recognize common-law marriages formed in this state. So if you bought a home together before marriage but title is in one name, the other partner’s years of contributions may go unrecognized in a divorce.

A prenup can:

• Recognize property you jointly paid for before marriage, and say how it will be divided;
• Decide whether property acquired while living together, or while registered as domestic partners, should be treated as marital;
• Resolve property questions left over from a domestic partnership or civil union registered in another state or country.

2. Children: Custody Is Decided Later, But Some Things Can Be Addressed Now

Same-sex couples build families through adoption, assisted reproduction or surrogacy (New York has permitted compensated gestational surrogacy since 2021). For the prenup, it is important to separate what can and cannot be included:

• Custody and child support cannot be fixed in advance. Whether a child is adopted or born through assisted reproduction or surrogacy, the court decides based on the child’s best interests at the time of divorce. This is genuinely something that can only be decided later.
• You can record your shared intent to raise children together, and how adoption, IVF or surrogacy costs will be shared.
• Frozen embryos. If you plan to use IVF, agree in advance on what happens to frozen embryos upon divorce or death. New York’s highest court held in Kass v. Kass, 91 N.Y.2d 554 (1998), that such agreements should generally be presumed valid and enforced.
• A prenup does not replace legal parentage. Even when married, the non-biological parent should consider a step-parent / second-parent adoption or a judgment of parentage under New York’s Child-Parent Security Act (CPSA), so that parentage is recognized when the family travels or moves to another state or country.

3. Pets

For many couples, pets are family. A prenup can address ownership, shared care and costs (see the pets article in this series).

The Bottom Line

Same-sex couples’ family stories are often longer and more complex. A tailored prenup can account for past contributions, future children and your shared life together.

Attorney’s perspective

When I prepare a prenup for a same-sex couple, I start by mapping the years you lived together before marriage: who paid for what, and whose name is on the title. For couples planning children, I also recommend a second-parent adoption or judgment of parentage alongside the prenup, because the agreement cannot take its place.

For advice about your own situation, call +1 718-218-5805 or schedule a consultation. We meet clients in Flushing and Manhattan, in English or Chinese.

Series overview

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, please contact us.

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