A prenuptial agreement is a written contract created by two people before they are married. This contract usually lists all of property and debts each person has, and specifies what each person’s rights will be after the marriage.If the couple has children, these agreements can also provide for how each spouse would like to see property dispersed between them. Furthermore, while prenuptial agreements are often written with divorce in mind, they can also play an important role in property management in the event one of the spouse dies.

What Is a Will?

A will is a written document by a person stating how he or she wants his or her property treated upon the person’s death. Unlike prenuptial agreements, wills specifically deal with the event of the death of the person who wrote the will. However, wills only pertain to the person who wrote the will, unless the will is a joint will.

Which Document Takes Priority after a Death?

Due to the way prenuptial agreements are written, prenuptial agreements will often be the governing document upon the death of a person. First, prenuptial agreements are legal contracts between the spouses. The contract, as a legal promise between two persons, is still binding if the other party to the agreement is still alive to receive the property.

Second, prenuptial agreements sometimes contain forum selection clauses which declare which state’s laws will apply should the contract be contested. As such, the surviving party of the agreement can have the agreement enforced in a state which would recognize the validity of the agreement. Wills cannot contain such clauses.

Does a Will Ever Have Priority over a Prenuptial Agreement?

There are a few events that would offset the legal advantages a prenuptial agreement has over a will. The following are a few situations where the prenuptial agreement will not take precedence over a will.

  1. The contract is ruled unenforceable by a court. This causes the prenuptial agreement to lose all binding power. This can occur if the contract is discovered to be made by a party under a state of duress or if the agreement is perceived to be grossly unfair to one of the parties. 
  2. The contract contains a "sunset clause." Sunset clauses automatically end a contract once a certain event has occurred or after a certain amount of time has passed. Prenuptial agreements, as an agreement made before a marriage, often contain sunset clauses. If a prenuptial agreement has self-expired via a sunset clause, then the will takes priority.
  3. The prenuptial agreement fails to include a forum selection clause declaring which state’s laws will govern the contract, then the case will automatically be decided by the state in which the person passed away. If that state’s laws places priority on the will over the prenuptial agreement, then the will shall be enforced over the agreement. 

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

It is generally not legal to disinherit your spouse through your will. Trying to structure your will to prevent your spouse from inheriting part of your estate will not work. Depending on where you live, your spouse is usually entitled to 1/3 to 1/2 of your estate upon your death. Attempting to give away property that you do not solely own, such as community property, may invalidate the will and trigger your states intestacy laws..

However, a prenuptial agreement can in effect serve to disinherit your spouse. An agreement that specifies what each spouse is entitled to in the event of a death is binding, and would allow you to disperse your property and assets to whomever you wished.

Should I Speak with an Attorney?

If you have questions about wills, disinheritance, or prenuptial agreements, you should consult with a lawyer. An experienced family lawyer can let you know the relevant laws in your state and how they would affect you in different situations.