BAEC Bulletin | March/April 2022 | 19
the Appellate Division decision. While section 236(B) (3) of the Domestic Relations Law and EPTL section 5-1.1-A both make absence of an acknowledgment fatal to a nuptial agreement, the statutes do not state whether the acknowledgment must be contemporaneous with signing. According to the Court of Appeals notarization of a nuptial agreement is vital because it impresses upon the parties the importance of the document being executed. The Court of Appeals held that Jack could not withhold acknowledgment, so as to later give him a choice to make the nuptial agreement effective or ineffective. The Court said that notarization did not have to be contemporaneous with the execution of a nuptial agreement. But the Court refused to set a deadline as to how soon after the signing of the document the acknowledgment must take place. In this case, however, it held that seven years far exceeded what was reasonable. In the companion case of Matter of Koegel, which was decided in the same opinion as Anderson, the Court of Appeals held the certificates of acknowledgment, which were slightly flawed, could later be cured so that the nuptial agreement was enforceable. The prenuptial agreement in Koegel was signed by both parties, and their respective lawyers took their acknowledgments. But, each acknowledgment certificate failed to attest that the signer of the nuptial agreement was known to the Notary. After the death of the husband, the wife attempted to assert her right of election. The husband’s estate petitioned to invalidate the wife’s election on the basis of the nuptial agreement. The evidence before the Court was that each party was known by the respective lawyer, and that, therefore, the flaw in the acknowledgment certificates was cured. In comparing this situation with Anderson, the Court emphasized that the defect in the certificates in Koegel was through no fault of the parties to the agreement. • “...this law will permit the Notary to receive a document, sign it electronically, and then email the document back...”
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