Does A Prenuptial Agreement Override A Will

Executive summary

• A prenuptial agreement is an agreement that outlines the division of property between two individuals entering a marriage in the event that the marriage ends through divorce or death. 
• A prenuptial agreement may be able to influence a will or trust in some circumstances, but it often depends on the unique case and the specific terms established in the prenup.
• A former spouse with a prenuptial agreement who doesn’t receive an inheritance described in the agreement may be able to sue for breach of contract.
• A prenup and a will are subject to different terms for validity and enforcement, which can lead to legal contests after a spouse passes away.

Introduction

Premarital agreements and postnuptial agreements have increasingly become more commonplace in modern marriages. A 2022 poll by Harris Insights & Analytics found that 15 percent of married respondents reported having a premarital agreement, up from 3 percent in 2010.

This uptick undoubtedly has been a win for the dockets of divorce court judges (obviously, unless you consider the increase in premarital agreement litigation). However, the proliferation of prenuptial agreements or prenups also means we are seeing more premarital agreements being litigated in probate court after one of the parties dies. Married couples, and their attorneys, should be aware of how these two processes can interact in order to avoid disputes and ensure all parties’ wishes are carried out.

What is a premarital agreement?

Premarital agreements, also known as prenuptial agreements or antenuptial agreements, are contracts entered into by two individuals prior to their marriage that, in their simplest terms, set forth a structure for dividing property in the event of separation or divorce. Couples who choose to enter a premarital agreement often do so in order to protect their individual assets held prior to marriage, clarify financial responsibilities, and avoid potential conflicts upon divorce or death.

In California and most other states, for a prenuptial agreement to be valid and enforceable, it must meet the following requirements:

• It must be entered into voluntarily by both parties. Evidence of coercion or duress can invalidate the agreement.
• Full disclosure is required. Prenups can be invalidated if it is shown that either party failed to fully disclose their assets, income and debts to each other before signing the agreement.
• Both parties must be legally competent and capable. They must have capacity to enter into a legal contract, meaning they are of sound mind and are at least 18 years old.
• The agreement must be fair. As with all legal contracts, if the agreement unfairly favors one party over the other, a court may refuse to enforce it on the grounds that it is unconscionable.

If a married couple wants to change the terms of their premarital agreement, they can do so by entering into a written agreement to amend or revoke the original agreement. This written agreement must also be signed by both parties and should clearly state the changes being made to the original agreement.

If any of the above criteria are not met, then the agreement can be considered void.

How do prenups impact the probate process?

A premarital agreement, or prenuptial agreement, can waive a surviving spouse’s ability to serve as administrator or executor of their spouse’s estate, or waive their right to inherit in whole or part from their spouse’s estate. Similar marital agreements that can impact the probate process include antenuptial and postnuptial agreements. 

In California, Texas, and other community or quasi-community property states, a spouse generally will still be entitled to one-half of all income and assets earned due to the spouse’s efforts during the course of a marriage, regardless of whether there is a will or not. However, a premarital or postnuptial agreement can override this default rule and specify that the surviving spouse will not receive some (or any) of that inheritance.

Case study: Northern Trust v. Shaw: Legal Precedent

When wills, trusts and prenups conflict or lack clarity, probate litigation inevitably results. A prime example is Northern Trust v. Shaw, 2D15–537 (2016), where the surviving spouse sued her husband’s trust estate seeking $1 million – as the terms of both the couple’s prenuptial agreement and his estate plan each entitled her to a $500,000 payout.

The district court sided with the plaintiff’s spouse, awarding her the $1 million, but the appellate court reversed that decision, finding the obligations of each agreement had already been satisfied under the relevant intestate law, giving the spouse only a $500,000 payout.

Conflicts surrounding wills, trusts, and prenups

Prenups are over-arching agreements that can outline terms for how to distribute assets if a couple divorces or one spouse passes away, while wills and trusts are estate planning tools designed specifically to outline plans for asset distribution. Conflicts can arise over how to distribute your estate assets if any of these documents contradict each other. 

It’s important to understand what each of these options are. A will is a document that identifies beneficiaries to receive your assets and under what terms. Meanwhile, a trust places ownership of your assets in the hands of a trustee to administer and distribute following your death.

Common issues leading to litigation 

Ideally, a prenup should complement a will or trust by outlining similar plans for the estate and simply establishing the difference between community property and separate property. However, they can contradict each other, which can lead to disputes between potential heirs or beneficiaries.  

If there are discrepancies or inconsistencies between a prenup and a will or a trust, it could lead to probate or trust litigation following one spouse’s death. The most common issues arise when the entitlement to property described in a prenup differs from the entitlement outlined in the estate planning documents.

Examples of potential issues surrounding a prenup

In one hypothetical example, consider that an antenuptial agreement signed between a husband and wife designates a vacation home as separate property.  However, the husband’s will, drafted later during the marriage, ultimately identifies his wife as the beneficiary of the home.

When the husband dies, the children may argue that the prenup should be respected and that a portion of the value of the home, as separate property, should belong to them. Meanwhile, the wife could argue that the will reflects her late husband’s most recent wishes. 

Conflict can also arise to a spouse’s disadvantage. In another hypothetical situation, a prenup states that a wife is entitled to receive a payment of $250,000 and ownership of the husband’s property upon his death. However, when her spouse dies, she finds that his will designates a far smaller inheritance of $100,000 and no ownership of any property in the estate. Instead, the will specifies that he wishes to leave the property and the remaining financial assets to his son.

Although the surviving wife could argue that the prenup was a binding contract and she should be entitled to the larger share initially stated in the prenup, the son could argue that the will reflects his most recent wishes for his assets and that the larger share of the inheritance designated for him should be respected.

In both of the above cases, these disagreements could lead to lengthy and costly litigation that is ultimately up to the court’s discretion to decide the outcome based on local or state law. Of course, every case is different, so if you are involved in a dispute surrounding an inheritance, you should seek the support of a probate litigation attorney as soon as possible. 

The need for extrinsic evidence

Inconsistencies between one’s premarital agreement and one’s will or trust are likely to lead to litigation in which parties may seek to use “extrinsic evidence” (evidence drawn from outside the source document) to demonstrate the decedent’s intent rested in one but not the other document, potentially resulting in an interpretation that wanders far astray from the decedent’s original intentions.

Examples of extrinsic evidence might include: 

• Previous drafts of a will or other estate planning documents
• Communications between the testator and attorneys through email or recorded conversations regarding estate planning document provisions
• Former statements or communications with family and friends
• Financial records demonstrating transactions to or relationships with potential beneficiaries

Of course, the best solution, as always, is to avoid a problem before it happens, but planning for the unthinkable, no matter how unlikely, can help you avoid unwanted outcomes. Considering your pre-nuptial agreement alongside your estate plan in consultation with your estate planning attorney and/or your family lawyer should help bring harmony even in unharmonious circumstances.

Prenups and estate planning

A prenup can be used to protect an inheritance. However, how a prenup fits into a person’s estate plans depends on the nuances of each case. A prenup does not always outline terms to follow upon the death of one spouse, but if it does, it can factor into a decedent’s estate planning. If a prenup provides terms for a person’s death, it’s important to consider the following circumstances.  

How prenups are used to address inheritance

Not all prenups address how to distribute an inheritance following a spouse’s death, as many are focused more on the terms surrounding when a marriage ends as a result of divorce. However, if they contain language that covers how assets should be handled following a spouse’s death, some prenups can carry weight in determining how to distribute an inheritance.

Some of the circumstances in which a prenuptial or a postnuptial agreement may address an inheritance include: 

• Outlining what assets the surviving spouse will inherit if the other spouse dies
• Distinguishing between marital, community property, and separate property
• Designating provisions regarding financial support to a surviving spouse from the estate after the spouse dies
• Specifying that the spouse cannot serve as the executor of the will during probate
• Waiving a spouse’s right to inherit separate property 

Can a prenup override a will? 

Ultimately, a prenup is a contract between two parties, which both sides have a duty to uphold. If a prenup was agreed upon between both sides, a surviving spouse may be able to argue that the estate is entitled to upholding the agreement. Generally, for a prenup to override a will, the surviving spouse or former spouse will have to sue the estate for breach of contract. 

However, every case may be different. Whether a prenup can override a will often depends on whether the prenup is valid and enforceable under state law, whether the prenup included language regarding the death of a spouse, and if the agreement is considered fair and reasonable.

Does a prenup override a beneficiary designation? 

Even if a prenup states that a spouse should or should not inherit assets, it is not certain to override the terms of the will. However, a prenup can override a beneficiary designation in some cases. 

For example, in community property states like California and Texas, a spouse is considered a beneficiary under intestate succession laws. In these states, a surviving spouse would be entitled to inherit all community property and half of the decedent’s separate property, if the decedent had a child. This minimum right to an inheritance is known as elective share.

However, a spouse can use a prenup to waive a surviving spouse’s right to inherit separate property, waive their right to elective share, or designate money earned during marriage as separate property, reducing the inheritance a spouse would be entitled to.

If any of these occur, and the will does not mention your spouse’s entitlement to any of these assets, the prenup will override state law and the beneficiary designation. It’s important to maintain clear intentions in a prenup and carry them over throughout all aspects of your estate planning to ensure consistency and prevent the threat of disputes or ambiguity between them.

Does a prenup override a trust? 

Whether a prenup overrides a trust depends on the structure of the arrangement and the language included in the initial prenup. If the prenup includes language that specifies whether a spouse has a right to inheritance, it may be able to supersede a trust. 

Establishing a trust places assets into the ownership of a trustee to be administered and distributed after an individual’s death. A trust can be used as a tool for distinguishing separate property from marital property in order to protect specific assets for beneficiaries and descendants.

However, placing assets in a trust doesn’t automatically prevent a surviving spouse from being able to claim ownership of certain assets—it can be up to the judge’s discretion to decide whether the prenup or the trust takes priority and whether the spouse has a right to inherit assets in the trust.

Similar to a case for a will, if a spouse establishes a trust that contradicts the prenuptial agreement created by the decedent, the surviving spouse may be able to sue the trust for breach of contract and receive a greater portion of an inheritance.

Are prenups contested after death?

Prenups can be contested after death. However, a prenup likely can’t be contested solely on the grounds that the spouse is unhappy with the terms of the agreement and must be grounded in a concern over the validity of the prenup.

For example, if a spouse waives their right to elective share in the prenup, but upon the death of their spouse, wants to exercise their legal right to community property under state law, this would not be a valid contest if the contract was fairly agreed upon initially. Instead, the surviving spouse would need to contest the validity of the prenup and the agreement itself.

That said, prenups and postnups are not always enforceable, and can be contested on some of the following grounds: 

• The surviving spouse can cite that the agreement was unfair at the time
• The surviving spouse was coerced into signing the agreement
• The surviving spouse was not fully informed when the signed the premarital agreement
• A surviving spouse or other descendants of the decedent can contest that the will demonstrates the most accurate final wishes and should supersede the prenup 

In any case, it will require significant and compelling evidence to prove that the agreement should be invalidated. Prenups have unique requirements for enforceability, and a judge will be responsible for making the final determination of the prenups validity in court. 

A will vs. prenup: Comparative analysis 

Although they can overlap during the estate administration process, a will and a prenup are different documents that have different purposes under the law. A prenup is a contractual agreement between two individuals entering marriage that specifies how assets should be divided in the event of death or divorce. 

However, a will only outlines an individual’s wishes for the distribution of their assets upon their death. A will is typically the guiding document for the administration of a deceased individual’s estate after they pass away. 

A will is focused generally on all the assets of the estate and how they should be distributed to beneficiaries, whether that includes children, a spouse, or other descendants. A will outlines an individual’s wishes for their assets and does not need to be agreed upon with a spouse.

Meanwhile a prenup is an agreement between two parties focused specifically on the terms of the marriage and any assets relating to marriage—anything in a prenup must be agreed upon by both sides. Because a prenup lays out terms for the ending of a marriage, this can also include defining terms for distributing assets if the marriage ends in the death of one party. 

If a will contradicts any of the terms laid out in a prenuptial or postnuptial agreement, it could lead to disputes between beneficiaries during probate. 

Does a prenuptial agreement survive death?

A prenuptial agreement acts as a contract that must be upheld between two parties—as a result, a prenup can still be considered enforceable even after one party dies. However, a prenup may no longer be enforceable in the event of death if the surviving party can prove that they were coerced into signing the document, the agreement was unfair, or they were taken advantage of.

Preventive measures: Proactive strategies for couples

Although there is a potential for disputes between a prenup and a person’s will or trust instrument, this can often be avoided through comprehensive planning. To avoid conflict in your estate administration following your death, it’s important to ensure that a prenup aligns with other aspects of your estate plans.

To protect your estate plans and prevent issues, you should take the following steps:

• Ensure your estate plans and prenuptial agreement are aligned by using similar language and terms
• Develop a cohesive plan between your financial planning and estate management
• Regularly review estate plans and the terms of the prenup and negotiate adjustments if necessary

Regardless of the circumstances, it’s always important to consult an estate planning attorney and financial experts about your plan. Having legal representation will ensure fairness in the agreement and increase enforceability. This will help you develop an airtight estate plan that aligns with your wishes and minimizes the risks of potential disputes.

What is a Marvin action? 

A Marvin action is any type of action where an unmarried partner files for support from the other party that they lived with due to an explicit, implied, or oral contract between them. A Marvin action gets its name from the case Marvin v. Marvin, where Michelle Marvin lived with Lee Marvin for seven years but were unmarried. 

In the case, Michelle claimed that Lee promised to take care of her and support her for her entire life through an oral agreement where both would share equally any property accumulated. However, Lee eventually refused to provide any further financial support. On appeal, the California Supreme Court denied Michelle’s claim for support on the grounds of insufficient evidence. 

A Marvin action specifies that two people who are living together unmarried may have a cause of action to receive an inheritance from the other if agreed upon, but ultimately, it is very difficult to prove. This may open up the potential for a legal contest during the estate planning process if two parties had an oral agreement prior to one’s death, even if they were not married.

Navigating the intersection of prenups and probate

There is no clear-cut answer for how prenups and wills affect each other, as each case is different depending on the terms of the prenup and the unique circumstances of each case. A will or trust is the guiding force in leading estate planning efforts, but prenups are still enforceable contracts. If you have a prenup established that may affect your estate planning, it’s important to consult a skilled attorney regarding your options. 

At RMO Lawyers, we can help you understand how your estate planning documents affect each other and what inheritance you are entitled to. Our probate estate litigation attorneys have decades of experience in disputes around estate planning and rightful access to an inheritance. We’ll help you build a winning strategy to secure your rightful inheritance. 

Schedule a consultation with us at RMO Lawyers so we can discuss your legal options and how to protect your inheritance.