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By Chaninat & Leeds


26 July 2011

In 1995, Illinois adopted the Uniform Premarital Agreement Act. The current version can be found in Illinois Compiled Statutes 750 Families and is virtually identical to the U.P.A.A. Consequentially, it is clear that a couple’s choice of law provision will apply to issues of construction. However, it is unclear whether choice of law will also govern issues of validity and enforcement. The common law of Illinois that addresses choice of law provisions within prenuptial agreements does not clarify the issue. Therefore, it is necessary to look to cases regarding contracts in general to predict Illinois’ treatment of a choice of law provision in a prenuptial agreement. For example, in Keller v. Brunswick, the court reviewed the validity of a commercial contract that included a choice of law provision. The court declined to distinguish between choices of law governing validity and construction. If an analogy is drawn between commercial contracts and prenuptial agreements, Illinois courts may allow a couple’s choice of law provision to govern the construction issues as well as validity for prenuptial agreements. However, this is speculative and couples should consult with legal counsel before drafting their choice of law provision. For conflict of law decisions, Illinois follows the “most significant relationship” test (Esser v. McIntyre, 169 Ill.2d 292, (Ill. 1996)).

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