Can the Provisions in a Will Trump a Premarital Agreement?

By Beverly Bird

Generally, a premarital agreement trumps a will rather than the other way around, but there are exceptions. Most state laws prohibit a spouse from disinheritance unless there is a specific agreement -- such as a prenup -- between husband and wife where each waives their right to inherit. The provisions of a will can trump a prenuptial agreement only if the intent of the will to revoke or modify the prenumptial agreement is clear.

Elective Shares

Most states include “elective share” provisions in their estate laws. An elective share is the right of a surviving spouse to a certain portion of the value of the deceased’s estate, usually one-third to one-half. The surviving spouse can “elect” to take that portion rather than whatever was left to him in the deceased’s will. This is true even if the entire estate is bequeathed to others, such as the deceased’s children from a previous marriage or relationship. The executor of the will would be obligated to liquidate the assets given to the children in order to give the spouse his elective share. The only protection against this is if the spouse waives his right to an elective share in a premarital agreement. A premarital agreement alone can’t prevent an elective share -- it must be specifically stated in the agreement that the right is relinquished.

Identification of Property

An elective share is usually a percentage of the value of the deceased’s entire estate, including assets that would normally bypass probate, such as life insurance policies with a named beneficiary. However, a premarital agreement normally identifies assets that were brought into the marriage and these could be exempt from elective share statutes. They are not marital property, something a spouse would have a legal right to share. A premarital agreement can trump portions of a will by removing these assets from the estate before the estate is divided.

Protect your loved ones. Start My Estate Plan

Intentional Revocation

In some instances and to the benefit of the surviving spouse, a will can trump a prenup if the will makes a specific bequest even though the surviving spouse waived her right to receive anything. If a will states that a spouse is bequeathing item "X" to his wife despite the fact that he has no obligation to do so under the terms of their premarital agreement, the terms of the will generally prevail as long as that intention is clear.

Mutual Enforcement

Ideally, your premarital agreement will contain the same terms as your will. A premarital agreement can obligate both parties to make a will after the marriage that mirrors the same provisions. If the will is made prior to the marriage, at the same time as the premarital agreement is signed, generally a revised will or new will is necessary to acknowledge the marriage. In this case, neither the will nor the prenup trumps the other because they confirm the intentions of each other.

Protect your loved ones. Start My Estate Plan
Husband's Contract to Waive Rights to an Elective Share of a Spouse's Property

References

Related articles

Which Is Stronger, a Will or a Prenuptial Agreement?

Wills and prenuptial agreements are both made stronger by the existence of the other. Successfully contesting either one is virtually impossible if they both say the same thing and cement each other's terms. In the final analysis, however, a prenuptial agreement can achieve things that a last will and testament cannot when your goal is to protect your property from the effects of death as well as divorce.

The Rights in Texas of a Deceased Husband's Second Wife

When a person dies, his surviving spouse is typically the first person entitled to inherit from his estate. In Texas, the decedent's estate passes according to the provisions of his will or, if there is no will, the laws pertaining to intestate succession. If the decedent has married a second time, that surviving spouse has a claim to the estate's assets either by will or intestacy.

Does a Will Supersede Spousal Rights?

Generally, a person’s will governs the distribution of his assets when he dies. However, some rules apply to guide this distribution, such as rules that prohibit distributions to a pet. These rules vary by state, but many states have laws that mandate a certain minimum inheritance between spouses; thereby, keeping one spouse from disinheriting another spouse.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

New York State & an Estranged Spouse's Last Will & Testament

If you created your will while you and your spouse were still getting along, it may be time to change it. You may not ...

Spouse's Rights After Death

Marriage carries with it certain rights. Spouses have an obligation to support each other, even if one spouse just ...

Marital Rights in Connecticut

Marriage gives spouses throughout the United States certain rights when it comes to inheritance and divorce. However, ...

California Laws Regarding Wills

California law requires that a testator, or the person making a will, be at least 18 years of age and of sound mind. ...

Browse by category
Ready to Begin? GET STARTED