A prenuptial agreement usually covers several subjects at once: property, maintenance, estate rights and sometimes dispute resolution. If a court later refuses to enforce one of those terms, what happens to the rest? A severability clause addresses that question in advance. It is short and often treated as boilerplate, but recent New York decisions show that it can matter a great deal, and that it has limits. For the basics, see our guide to prenuptial agreements in New York.
What is a severability clause?
A severability clause (also called a severance or savings clause) is a contract term stating that if any part of the agreement is held invalid or unenforceable, the remaining provisions continue in effect. A simple version might read:
If any provision of this Agreement is held invalid or unenforceable, that provision shall be severed, and the remaining provisions shall continue in full force and effect as if the severed provision had not been included.
That sample is only an illustration; the right wording depends on how the rest of the agreement is built. The clause tells a court that the parties wanted the rest of their bargain to stand even if one piece falls. It does not decide the question for the court.
How do New York courts decide whether the rest of a prenup survives?
The Court of Appeals has explained that “whether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being” (Matter of Wilson, 50 N.Y.2d 59 (1980)). A severability clause is direct evidence of that intent. Courts also look at how the terms fit together, and two recent appellate decisions show both sides.
No severability clause: Gaudette v. Gaudette (2026)
In Gaudette v. Gaudette, 249 A.D.3d 1369 (3d Dep’t 2026), a couple married in 1977 after signing a prenup. One article required the husband to make certain purchases and payments during the marriage. After an earlier appeal and a hearing, that article remained ambiguous; the testimony indicated there was no meeting of the minds on how the obligation was to be met. The Third Department affirmed the decision setting aside the entire agreement: “because the agreement lacked any severance clause and the articles are closely intertwined, Supreme Court properly set aside the entire agreement as unenforceable.”
With a severability clause: Sleiman v. Sleiman (2023)
In Sleiman v. Sleiman, 222 A.D.3d 1333 (4th Dep’t 2023), the trial court set aside an entire separation agreement as unconscionable. The Fourth Department agreed that certain terms were unconscionable and the product of overreaching, but held that “because the separation agreement contains a severability clause, not every part of the separation agreement is necessarily unenforceable.” The trial court had erred by voiding the whole agreement without first holding a hearing on severability. The case went back for a hearing on whether the clause applied and whether fraud, duress, coercion, overreaching or lack of financial disclosure made the entire agreement unenforceable.
Sleiman involved a separation agreement rather than a prenup, but both are agreements under DRL § 236(B)(3), and the same contract principles apply. Notice what the clause did: it kept the rest of the agreement in play and required the court to decide. It did not save anything automatically.
When a severability clause cannot help
- The agreement was never validly executed. A prenup must be in writing, signed, and acknowledged in the form required to record a deed (DRL § 236(B)(3)). An unacknowledged agreement is “invalid and unenforceable in a matrimonial action” (Matisoff v. Dobi, 90 N.Y.2d 127 (1997)), and a defective certificate of acknowledgment can sink a prenup (Galetta v. Galetta, 21 N.Y.3d 186 (2013)). The severability clause falls with everything else.
- The whole bargain is tainted. Marital agreements can be set aside if they are the product of fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct (Christian v. Christian, 42 N.Y.2d 63 (1977)). If the problem infects the entire agreement rather than one term, a severability clause does not cure it; that is the question Sleiman sent back for a hearing.
- The agreement itself has ended. In Matter of Wilson, a couple signed a separation agreement, with a severability clause, while they were still living together. The Court of Appeals held that the wife’s waiver of her right to elect against her husband’s will fell along with the agreement, explaining that such clauses “are not to be taken to render specific provisions independently enforceable when an agreement itself, rather than any of its components, is brought to an end.”
- The terms are closely intertwined. If the remaining terms do not make sense without the failed one, a court may conclude they cannot stand on their own, as in Gaudette, where there was also no severance clause.
Prenup provisions that need extra care
Maintenance waivers and caps
New York allows a prenup to limit or waive spousal maintenance, within limits. The terms must have been fair and reasonable when the agreement was made and must not be unconscionable when the divorce judgment is entered (DRL § 236(B)(3)), and no agreement may leave a spouse likely to become a public charge (General Obligations Law § 5-311). Because the second test is applied at the time of divorce, a waiver that was fair at signing can fail years later.
This is where a severability clause earns its place. In J.M. v. G.V., 87 Misc. 3d 171 (Sup. Ct., Kings County 2025), a trial court vacated a prenup’s maintenance provisions, finding that a self-represented spouse’s waiver, made without the guideline amount spelled out, was not knowingly made, and noted that the agreement’s severability clause “would render the remainder of the agreement enforceable.” It is a trial-level decision, but it shows how the clause is meant to work; see our discussion of J.M. v. G.V.
Child support and custody terms
Child support terms must contain the recitals the Child Support Standards Act requires: that the parties were advised of the law and that the formula amount is presumptively correct, and, for any deviation, the formula amount and the reasons for departing from it. Those recitals cannot be waived (DRL § 240(1-b)(h)). Custody is decided on the child’s best interests (DRL § 240(1)(a)). Child-related terms that miss these rules are open to challenge, so they should be drafted as separate, self-contained provisions or left to the statute and the court.
Ambiguous terms
Gaudette is a reminder that vague drafting can be as damaging as an unlawful term. Define key terms such as separate property, marital residence and income; use them consistently; and avoid obligations with no measurable standard or deadline.
How to draft a severability clause that does its job
- State the intent plainly. Say that the parties want each provision enforced independently to the extent the law allows.
- Build terms that can stand alone. Structure the property, maintenance, estate and dispute-resolution terms so each can operate if another fails, and avoid cross-references that make one term depend on another unless that is the deal.
- Add fallbacks where they make sense. For example, if a maintenance waiver is not enforced, maintenance will be determined under the statute and the property terms remain in effect.
- Do not count on a court to rewrite a term. Some clauses ask a court to modify an invalid provision instead of striking it. Whether a court will do that is up to the court, so draft each term to be enforceable as written.
- Protect the whole agreement. Proper acknowledgment, full disclosure, separate lawyers and time to review protect the entire prenup; a severability clause protects only the parts.
Updating or amending a prenup
A prenup can be changed after the wedding, but an amendment is itself an agreement made during the marriage. To be enforceable in a New York divorce it must be in writing, signed by both spouses, and acknowledged in the form required to record a deed (DRL § 236(B)(3)). An unsigned side letter or an exchange of emails will not do. Reviewing the agreement after major events, such as the birth of a child, a new business or a move to another state, helps keep it current. New Jersey has its own rules (see New Jersey’s premarital agreement law), and for agreements made after the wedding, see our guide to postnuptial agreements.
How we handle severability in the prenups we draft
We include severability provisions in the prenuptial agreements we draft and tailor them to how each agreement is structured, together with the execution steps that protect the agreement as a whole. Our fixed fees for prenups are $2,500 (Standard), $4,000 (Complex) and $6,000+ (High-Net-Worth).
Frequently Asked Questions
What is a severability clause in a prenuptial agreement?
It is a provision stating that if a court holds any part of the prenup invalid or unenforceable, the remaining provisions continue in effect. In New York, whether terms can be separated depends largely on the parties’ intent as shown by their language and the circumstances, so the clause is important evidence. It does not decide the question; the court does, after looking at how the terms fit together.
Does a severability clause guarantee the rest of my prenup will be enforced?
No. A severability clause improves the chance that the rest of the agreement survives if one provision fails, but the court decides whether the remaining terms can stand. It cannot save an agreement that was not properly signed and acknowledged, one tainted as a whole by fraud, duress or overreaching, or terms so intertwined that they cannot operate separately. In a 2023 appellate case, the clause led to a hearing, not an automatic result.
Can a court throw out an entire prenup because of one bad provision?
It can happen. In a 2026 decision, a New York appellate court affirmed setting aside an entire prenup after one article remained ambiguous even after a hearing, noting that the agreement had no severance clause and its articles were closely intertwined. A well-drafted severability clause and terms that can stand on their own make that outcome less likely, but they cannot rule it out.
How do we amend a prenup in New York?
By signing a written amendment that is acknowledged the same way as the original. Under New York law, an agreement made during the marriage is enforceable in a divorce only if it is in writing, signed by both spouses, and acknowledged in the form required to record a deed. Informal changes, such as an unsigned letter or an email exchange, are not enforceable for this purpose.
Whether you are drafting a new prenup or reviewing an older one, Joel Yacoob can explain how its terms fit together and where the risks are. Learn more about our prenuptial agreement services, or start your intake online.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.
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