A prenuptial agreement is an agreement or written contract entered into by two individuals prior to marriage. It may also be known as an ante-nuptial agreement. It generally lists all property and debts of each individual and what the rights to assets will be after the marriage. It may also specify how debts, income and expenses will be divided should the marriage dissolve.

If the couple has children, the agreement may also provide for how each spouse would prefer any assets and/or property be divided between them. A prenuptial agreement, however, cannot be used to restrict or end child support and/or child visitation rights. The spouse with a child support obligation and/or child custody must still pay the required support and/or allow their ex-spouse to visit the children. Although prenuptial agreements are usually written in case a legal separation or divorce occurs, they may also play an important role should one spouse pass away before the other.

Prenuptial agreements sometimes come with a negative connotation of a lack of trust. On the contrary, they may provide clarity and open communication. Individuals who are entering into a second or third marriage may use a prenuptial agreement to protect previously acquired property and/or assets.

What is a Will?

A will is a document that outlines how an individual wants their property to be treated upon their death. Unlike a prenuptial agreement, a will deals specifically with the event of the death of the testator, or individual planning for their death. Wills only apply to the testator, unless the will is a joint will.

The requirements for a valid will vary by state. Most states, however, have a few requirements for validity, including:

  • The will is in writing;
  • The will is signed by the testator;
  • The will is witnessed by at least 2 competent witnesses; and
  • The testator had testamentary capacity at the time the will was signed.

Which Document Takes Priority After a Death?

Due to the nature of prenuptial agreements, they will often be the governing document upon the death of one of the spouses. Prenuptial agreements are legal contracts between the married individuals. A contract, or legal promise between two individuals, is still binding if one party to the agreement is still alive to receive the property.

A prenuptial agreement can contain a forum selection clause that declares which state’s law will apply should the agreement contested. Therefore, the surviving party to the agreement may be able to enforce the agreement in a state which would recognize the validity of the agreement. Wills, on the other hand, cannot contain such clauses.

Does a Will Ever have Priority Over a Prenuptial Agreement?

There may be a few instances where a will has priority over a prenuptial agreement. These instances may include when the prenuptial agreement:

  • Is ruled unenforceable by a court;
  • Contains a “sunset clause;” and/or
  • Does not include a forum selection clause declaring which state’s laws will govern.

If the prenuptial agreement is ruled unenforceable by a court, it loses all binding power. This may occur if the agreement was made under duress or is unconscionable, or grossly unfair to one party.

Some prenuptial agreements contain a “sunset clause,” which states the agreement will automatically end once a certain event has occurred or a certain amount of time has passed. If the prenuptial agreement contains a “sunset clause” that causes the agreement to self-expire, a will takes priority.

If the prenuptial agreement fails to include a forum selection clause indicating which state’s laws will govern, the case will automatically be decided by the state in which the individual passed away. If the state law places priority on the will over the prenuptial agreement, then the will shall be enforced.

Can I Disinherit My Spouse through a Will or Prenuptial Agreement?

Generally, no, an individual cannot disinherit their spouse through their will. Attempting to structure a will to prevent a spouse from inheriting part of their estate will not work. Depending on the state in which an individual resides, their spouse is usually entitled to one-third to one-half of their estate upon death. If one spouse attempts to give away community property, or they do not solely own, it may invalidate the will and trigger the state’s intestacy laws.

On the other hand, a prenuptial agreement can, in effect, disinherit a spouse. An agreement that specifies what assets and/or property the spouse is entitled to in the event of a death is binding. This would allow an individual to disperse their property and/or assets as they wish to whom they wish.

Should I Speak with an Attorney?

Yes, it is important to have an experienced family lawyer assist you with any issues regarding wills and/or prenuptial agreements. An attorney can review your case and relevant documents and determine what laws apply and how they will affect you. They can also assist in drafting these documents. Additionally, a lawyer in your area can represent you should any disputes arise from the documents and represent you during any court proceedings, if necessary.