42-1006. Enforcement.
(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(a) That party did not execute the agreement voluntarily; or
(b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) 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
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(2) 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, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(3) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
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Annotations
The following factors may be used to determine whether a premarital agreement was entered into voluntarily: (1) coercion that may arise from the proximity of execution of the agreement to the wedding, or from surprise in the presentation of the agreement; (2) the presence or absence of independent counsel or of an opportunity to consult independent counsel; (3) inequality of bargaining power—in some cases indicated by the relative age and sophistication of the parties; (4) whether there was full disclosure of assets; and (5) the parties' understanding of the rights being waived under the agreement or at least their awareness of the intent of the agreement. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
The party opposing enforcement of a premarital agreement has the burden to prove that the agreement is not enforceable. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
The proceeds from a wrongful death action are not the property of a decedent's estate and are therefore not contemplated as a property right waived in a premarital agreement unless the language of the premarital agreement specifically waives such a right. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).
Evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the involuntariness of a premarital agreement. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
That a party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party is not alone sufficient to make the agreement unenforceable. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
The party opposing enforcement of a premarital agreement has the burden of proving that the agreement is not enforceable. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
The provisions of this section do not in any way suggest that if any part of a premarital agreement is unconscionable, the entire agreement is unenforceable. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
When considering whether a party executed a premarital agreement voluntarily, courts should consider whether the evidence demonstrates coercion or lack of knowledge, the presence or absence of independent counsel, inequality of bargaining power, disclosure of assets, and the parties' understanding of the rights being waived or the intent of the agreement. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).