Does a Prenuptial Agreement Take Priority Over a Last Will & Testament?

By Jeffry Olson, J.D.

Does a Prenuptial Agreement Take Priority Over a Last Will & Testament?

By Jeffry Olson, J.D.

When a prenuptial agreement and a last will and testament are in conflict, the prenuptial agreement often takes precedence, but the decision is in the hands of a probate court. A prenuptial agreement, commonly referred to as a prenup, is an agreement entered into by two parties prior to their marriage. It generally deals with property distribution in the event of a divorce.

Three people at desk

A last will and testament states a deceased person's wishes for their estate after their death. The last will and testament identifies the assets of the deceased person, or testator, and all beneficiaries receiving assets upon the death of the testator. When the testator dies, the estate goes into probate, the court proceedings involved with verifying the validity of the will, hearing any claims against the estate, and dividing and distributing the testator's assets.

When a Prenup and a Will Conflict

When the terms of a prenuptial agreement conflict with a last will and testament, a probate court carefully examines the terms of the prenuptial agreement. The court is likely to find that the terms of the prenuptial agreement take precedence over the terms of a last will and testament.

A prenup should indicate which law the reader should use to interpret it. If the prenuptial agreement does not contain this information, and a spouse dies in a state other than the state where the couple created the document, the laws in the state of the spouse's death take control. A prenup sometimes contains a "sunset" clause, which sets an expiration date for the agreement. After that date, a will automatically takes precedence.

If the beneficiaries of the last will and testament can show that the prenuptial agreement is invalid, the court will not enforce its terms. This might occur if a spouse entered into a prenup under duress.

When estate planning, consider the existence of a prenuptial agreement. To avoid costly litigation in the future, the parties can resolve any disagreement with the prenup by using appropriate language to clarify which document takes precedence.

Intestacy Laws

When a party dies without a last will and testament, a court follows the intestacy laws of the state to determine how to distribute the deceased's assets. However, if the deceased had entered into a prenuptial agreement, the probate court may enforce the terms of the prenuptial agreement. Courts use intestacy laws to resolve an estate when no other agreement exists. Because the prenuptial agreement is a contract between the parties, the court might look to the terms of the agreement instead of applying the state's intestacy laws.

When the terms of a prenuptial agreement and last will and testament conflict, the probate court carefully reviews the terms of both agreements. Depending on the wording of each document, the court may rule that the terms of the prenuptial agreement take priority over the terms of the last will and testament. Regardless of the ultimate outcome, this dispute requires a court hearing, and the legal proceedings going into that decision involve attorneys and often become expensive. Including language in both documents that clearly states which takes precedence is the best way to prevent legal troubles.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.