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

By A.L. Kennedy

A prenuptial agreement, also known as an antenuptial agreement, is a contract you and your prospective spouse enter before marriage. In a prenuptial agreement, you and your prospective spouse agree on a specific way you will handle property and other issues. A prenuptial agreement may take priority over a last will and testament if it contains specific statements to that effect.

Prenuptial Agreements

A prenuptial agreement typically handles issues relating to property. For instance, the agreement may set out which spouse owns what, and who will take one property if the spouses separate or divorce. The prenuptial agreement may also set out the terms by which each spouse will write his or her will or other estate planning documents, including who will receive what property when one of the spouses dies.

Prenuptial Agreements and Wills

If the terms of the prenuptial agreement conflict with the terms of either spouse's last will and testament, a probate court may choose to uphold the prenuptial agreement unless the deceased spouse's beneficiaries can show that the prenuptial agreement was created under duress, is unfair or tended to encourage divorce, according to the Legal Information Institute. Probate courts tend to rule in favor of a prenuptial agreement when it appears that the agreement was fairly negotiated between the spouses.

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In addition to taking priority over a will, a prenuptial agreement may be used to distribute the estate if one spouse dies intestate, meaning without a will or estate plan, or if a will was later found to be invalid. Usually, the probate court will apply state law to decide who receives the property left by an intestate person. However, since the prenuptial agreement is a contract made while the deceased person was alive that deals with that person's property, the court may use the prenuptial agreement to distribute the property. In this situation, the prenuptial agreement can override state law even if a will could not. For instance, most states will not allow a spouse to completely write the other spouse out of his will, but may allow a prenuptial agreement to leave the entire estate to someone other than the spouse.


A prenuptial agreement is more likely to take priority over a will if it contains a few specific clauses. For instance, a prenuptial agreement should state which law should be applied to interpret it, especially if it was made in a different state than the one in which the spouse died. Otherwise, the law in the state where the spouse died will control, even if that was not the law the couple had in mind when they made the will. Also, check the prenuptial agreement carefully to see if it contains a sunset clause, a statement setting an "expiration date" for the prenuptial agreement. If that date has passed, the prenuptial agreement is no longer binding and the will may govern the distribution of the estate.

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