When couples are planning a wedding, many consider a prenuptial agreement (“prenup”) in order to protect themselves in the event that they decide to divorce. It’s usually thought of as protection for second marriages to protect inheritances to children from previous marriages.
However, first-time marrieds also sign prenups for various reasons. Many parents require their children to sign prenups to protect inheritances from the possibility of debtors or divorce court.
Later in their married life, a couple may have children and realize the need to plan for their future. A will provides direction for the surviving spouse, any children, and may name a guardian if the need arises.
But what if the documents are in conflict?
The Will And The Prenup
A prenuptial agreement is generally for a property division arrangement to be executed in the event a couple decides to divorce. The prenup spells out exactly how the couple would like to divide property and other concerns without the uncertainty of a court deciding it for them. It should also declare separate property, and include the division of property and other matters upon the premature death of one party. Therefore, the prenup usually overrides those laws that apply to a surviving spouse, and should not be considered a will and/or estate plan.
A will (or “last will and testament”) spells out a party’s last wishes and gives directions on handling their estate when they pass away. This can include naming an executor and/or trustee, beneficiaries who would receive assets or property, and list all assets in the individual’s estate.
But when the two documents conflict at the time of one party’s death, the probate court must examine both documents to decide which one to use.
In many cases, a probate court will enforce the terms of the prenup, especially if a party dies without a will (“intestate.”)
Some prenups may contain a “sunset” clause, indicating an expiration date for the document. In this case, the prenup may be ruled invalid. If there are issues that can invalidate a prenup, a court can set it aside and enforce the will’s terms.
What’s The Solution?
Ideally, the prenup and the will would always be in sync, and there would be no conflict. But that’s not always the case.
If you have a will and/or an estate plan, your attorney will likely advise you to review it yearly, or once every couple of years. Many surviving spouses have discovered that their partner had not updated their will in a while, and they were left out with little or nothing, especially if there were children involved from a previous marriage. Even worse, the partner’s former spouse inherits what he or she never intended.
You should also regularly review your prenup, especially if you haven’t reviewed it for some time. A prenup can be modified and updated so that it reflects the changes in your marriage since you signed it. This could be in the form of children, a new or inherited family business, additional real estate, or other unexpected changes.
Think of it this way: a prenup divides up assets (and liabilities) in the event of a divorce. A will divides up assets in the event that one of the parties dies. So it’s vital that both a couple’s prenup and their wills should be regularly reviewed and modified to ensure that they are in sync, and one doesn’t cancel the other out.
You can also include language that indicates which document should take precedence in the event of the death of one party. It will prevent the court from being forced to choose one over the other and could choose the prenup, leading to costly litigation to decide. Making sure the prenup and will are complementary can save the surviving spouse a considerable amount of time and money in the future when he or she may already be distressed.
Let Wendy L. Hart Help With Family Law Planning
Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County who need help in marriage and family matters, including prenuptial agreements and wills. We represent both men and women in all family law matters. We’ll make sure you’re treated fairly and will protect your interests and your children.