Embrace the Monotony of Boilerplate Legalese in Prenups

New York Law Journal

In The Pale King, the novelist David Foster Wallace wrote the following: “To be, in a word, unborable…It is the key to modern life. If you are immune to boredom, there is literally nothing you cannot accomplish.”

As a matrimonial lawyer, nowhere does this wisdom apply more than in the context of reading and reviewing the “boilerplate” provisions in the separation, prenuptial, postnuptial and other agreements that we regularly draft as part of our practice.

Indeed, there is potentially enormous value in establishing a Teflon-like immunity to the understandable boredom that can come with reviewing boilerplate legal language in matrimonial agreements.

A recent decision of the Surrogate’s Court, Kings County, presents an excellent example of how boilerplate legal language can, in some instances, prove more important than the substantive provisions themselves.

Stated differently, the substantive provisions—while instinctively more interesting and engaging to draft, analyze, etc.—can interplay with the boilerplate provisions to such an extent that without intact boilerplate provisions, the substantive provisions may be at risk of dying on the vine.

With that in mind, in Estate of Kevelson (Surrogate’s Court, Kings County, NYLJ, March 8, 2023), Judge Rosemarie Montalbano adjudicated a motion in limine filed by Terri Kevelson nee Bienfeld to preclude admission of a prenuptial agreement from 1992 between her and Stephen Kevelson (deceased) prior to their marriage. The motion was filed in the context of a hearing to determine the validity of the prenuptial agreement.

A petition was filed to probate Mr. Kevelson’s Last Will and Testament. Ms. Kevelson, the surviving spouse, filed objections to the probate petition. The proponent of the petition produced a copy of the prenuptial agreement pursuant to which both parties waived the right to elect against the other’s will, i.e., it was argued that Ms. Kevelson had no standing to contest the will in view of the prenuptial agreement.

Ms. Kevelson made several arguments to establish standing, including that (1) the prenuptial agreement had been revoked and destroyed; (2) Mr. Kevelson failed to perform required obligations thereunder which amounted to rescission, and, there was no consideration; and (3) and, the prenuptial agreement was barred by waiver and laches, contrary to the Statute of Frauds and best evidence rules, incomplete, could not be authenticated, and, was not timely produced.

Judge Montalbano’s decision aptly uses the boilerplate provisions in the prenuptial agreement to decimate the core arguments that were asserted by Ms. Kevelson.

Regarding the alleged destruction of the prenuptial agreement, Ms. Kevelson argued that the agreement had been revoked and destroyed pursuant to an “oral agreement” and by the “act of tearing up” the agreement. But as the court explained, based “on the plain language of the agreement, any modification of the agreement requires that it be accomplished in writing.” The boilerplate language in the agreement stated:

No amendment, modification, or waiver of any of the terms or provisions of this agreement shall be effective unless it shall be in writing and shall be executed with the same formality as this agreement, and no waiver of any breach or default shall be deemed to be a waiver of any subsequent breach or default.

Consider how impactful this boilerplate language can be—the decision explains that “even if Kevelson’s claim that she and the decedent physically destroyed the original agreement is true, this destruction shall not serve as a basis for revocation” because it was “undisputed that there was no written revocation of the agreement.”

Moving on to the rescission claim, Ms. Kevelson argued that the decedent did not “(i) maintain an interest-bearing bank account, (ii) maintain a life insurance policy and iii) he rendered the Life Estate in the marital residence worthless.” While the Court’s decision references several legal principles to defeat the rescission claim, this article brings attention to the Court’s proclamation that “pursuant to the plain language of the agreement with respect to the parties’ performance, the agreement does not become invalid due to a failure of strict performance.” The boilerplate language in the agreement stated:

The failure of either party to insist, require or demand in any one or more instances upon the strict performance of any of the terms of this agreement…shall not be construed as a waiver or relinquishment for the future of any such terms…and all of the terms and conditions of the agreement shall continue in full force and effect. No waiver or relinquishment of any term or condition of the agreement shall be deemed to have been made by either party unless in writing duly signed by such party with the same formality of this agreement.

To be clear, there were other arguments that Ms. Kevelson made to support her claim to standing, some of which are referenced in this article. This author has intentionally focused solely on the import of the boilerplate provisions in the prenuptial agreement, as the remaining issues (e.g., Statue of Frauds, a claim that allowing testimony about the agreement would open the door to the Dead Man’s Statute, etc.) are frankly boring in comparison. And that, for those who can remember what life was like before the pandemic, is what we call a joke, i.e., it is intended to evoke laughter.

All kidding aside, be sure to have an exacting, clear mind before you begin to review the boilerplate provisions in your draft agreements, because if they are not closely examined, the consequences could be determinative.

Does this mean that boilerplate legalese in prenups is the be all and end all of a potential dispute down the road? Of course not—each case stands on its own facts. But a case such as Estate of Kevelson shows that the relevance of boilerplate legalese cannot be denied.

“Embrace the Monotony of Boilerplate Legalese in Prenups,” by Alan Feigenbaum was published in the New York Law Journal on May 8, 2023.

Reprinted with permission from the May 8, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.