Which Is Stronger, a Will or a Prenuptial Agreement?

By Christine Funk, J.D.

Which Is Stronger, a Will or a Prenuptial Agreement?

By Christine Funk, J.D.

A prenuptial agreement is a legally binding contract that dictates the division of premarital assets, but it can also include other agreements between the parties. A will, on the other hand, dictates the distribution of an individual's assets to their heirs when they pass away. Because most people consider prenuptial agreements as something crafted in case of a divorce, they may not see the connection between a prenuptial agreement and a will.

Couple speaking with a suited woman on a couch

However, prenuptial agreements come into full force and effect at the time the marriage commences. They do dictate how premarital property will be divided in the case of a divorce, but they also dictate how premarital property will be divided in the case of the death of one of the parties. Because a prenuptial agreement allows the parties to enter into a contract that extends beyond the legal reach of a will, a prenuptial agreement can make a subsequent will stronger. So, prenuptial agreements and wills can be used to reinforce one another or, sometimes, one can take precedence over the other.

Limitations of Prenuptial Agreements and Wills

Prenuptial agreements have very few limits. For example, one can agree to forgo any sort of alimony should the marriage end in divorce even if they are legally entitled to alimony. One can agree that each party will leave with what they brought into the marriage and the postmarital wealth will be split 50/50, 90/10, or whatever percentage the parties choose. Prenuptial agreements, however, cannot include things that are illegal. For example, a spouse cannot waive their right to Social Security or Medicaid payments based on the length of the marriage. Changes like this violate the law.

Wills, on the other hand, have statutory limitations beyond any agreement of the parties. For example, in most states, one cannot disinherit a spouse completely. Instead, a spouse is entitled to what is referred to as an "elective share" of the estate. This share amounts to the percentage the spouse would receive if the deceased had died without a will. Typically, the elective share is as much as ½ or as little as ⅓ of the estate, depending on the laws of the state. Even if the will specifically says all of a person's assets or the family business goes to the adult children of the first marriage, the second spouse still receives an elective share.

How a Prenuptial Agreement Provides Strength to a Will

If the parties engage in a prenuptial agreement and the spouses waive their rights to the elective share (one of the "other agreements between the parties" that is permissible in a prenuptial agreement), the state laws requiring an elective share no longer apply, assuming the prenuptial agreement is legally valid. Put another way, the terms of the prenuptial agreement trump the general rule of law regarding spousal inheritance.

Additionally, prenuptial agreements identify premarital property. This could include the size of the stock portfolio at the time of the marriage, the valuation of the family business, the property each spouse entered the marriage with, etc. Without a prenuptial agreement, it may be difficult to reconstruct which assets were premarital and which assets were acquired after the marriage. Thus, even if the spouse does not give up their elective share in the prenuptial agreement, this document can assist in dividing other assets after one party to the marriage passes away.

If you are getting married, it is very helpful to have a prenuptial agreement—even if you don't have a lot of assets. You can contact a family law attorney or consult an online service provider for assistance with drafting a prenuptial agreement.

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