How A Prenup Affects A Will

Jan 26, 2024 | Prenuptial Agreements, Protecting Assets

What do wills and prenups have in common? They’re both important pieces of financial planning, of course! Whether you have $10,000 or $10 million, estate planning is an important part of being a financially savvy adult. This comes with the task of creating certain legal documents to ensure your assets are taken care of in any scenario–death, divorce, incapacitation, you name it. But what happens when you have a will and prenup–what is the interplay between the two documents? How do they intersect and work together to make sure you are protected? We dive into this topic in depth below, so keep reading to learn all about how a prenup may affect a will and beyond. 


What is a prenup?

Prenups are crucial for anyone considering marriage. They are a way to protect yourself and plan out your finances with your new life partner. Prenups are contracts between two parties who are about to get married. They delineate various terms that you agree on with your partner for the marriage and in case of divorce (and sometimes death).

For example, you can include how you and your partner will file taxes together. Will you two file jointly or separately? You may also determine how a joint bank account will be treated during the marriage with a prenup (or mandating that there be no joint bank account at all!). Prenups can also be a way to plan financially for the event of a divorce, such as waiving spousal support and keeping certain assets/debts separate.


What is a will?

A Will is a legally binding document outlining your preferences for the distribution of assets and possessions after your passing. It allows you to specify beneficiaries—whether they are your spouse, children, friends, or charitable organizations—who will receive particular properties. In the case of minor children, a Will also enables you to designate a guardian, ensuring a trusted individual takes on their care in your absence. During the preparation of your Will, you appoint an executor, responsible for ensuring the fulfillment of your final wishes. This process facilitates a smooth transition, providing assurance that your intentions are carried out as you want them to.


Interplay Between Prenups and Wills

The intersection of prenuptial agreements and wills is fairly straightforward. Prenups do not specifically devise of property upon death (i.e., “Cousin Jimmy gets my car”), whereas wills do. Instead, prenups can: 

  • Include a requirement for the other spouse to create a will, 
  • Include a waiver of each spouse’s elective share to one another’s property (more on elective shares in the next section), 
  • Point to a will to explain how assets should be divided in the event of death, 
  • Ensure shared marital/community property remains in the possession of the surviving spouse (e.g., spouses jointly own a property, if one spouse passes away, the surviving spouse becomes the sole owner of the property).  

When it comes to estate planning, a prenuptial agreement can help in certain ways such as waiving elective shares or requiring a will from your spouse. However, it is important to note that a prenup cannot be used to transfer specific property to a particular individual, such as gifting a Van Gogh painting to your second cousin.


Waiving the spouse’s elective share in a prenup

Typically, spouses hold a legal entitlement to inherit a portion of their deceased partner’s estate, a right granted by state law, making it challenging to disinherit a spouse. Even if a spouse’s will directs assets solely to their children, neglecting the surviving spouse, the court may intervene, enforcing an “elective share” to provide for the surviving partner. Although elective share rights can be waived, it’s a step beyond the reach of a will. A will is a legal arrangement that is unilateral and created independently, requiring no agreement from other parties. However, a prenup, being a negotiated agreement between two people before marriage, can serve this purpose (to waive an elective share), allowing spouses to mutually waive elective share rights and designate their property for their children.


How a prenup affects your inheritance

Now, on the other side of things– if you know you are written into Mom or Dad’s will, and will one day receive an inheritance from them, you may be wondering how a prenup can help protect that inheritance. Well, for one, you can utilize a prenup to ensure that the inheritance stays your property and yours alone–in any scenario life throws your way. It’s a common misconception that inheritances are automatically protected in a divorce without a prenup… and that’s just not true! Without a prenup, you do run the risk of losing a portion of your inheritance to a future ex-spouse. We know, we know, it seems totally unfair; they’re YOUR parents, after all! But some courts, in some states, pool all the assets earned or received during the marriage and split it up–regardless of the source. A well-crafted prenup can keep those potential inheritances safe and sound in the event of a divorce. 

What happens if a will and a prenup contradict each other? 

This answer isn’t so straightforward. It depends on the state law and the situation. Also, were both documents executed properly and fairly? If there’s an argument that one document wasn’t executed according to law, then it may be thrown out anyway. Like if a prenup wasn’t properly signed and/or notarized, a court may disregard the prenup. Or if someone can show that the will was not executed by the deceased with a sound mind, the will may be tossed.

However, if there are no issues with the validity of the documents, the question remains: which document will prevail: the will or the prenup? Again, unfortunately, there’s no straight answer here. It depends on the circumstances and the state law. With that said, many times a prenup will prevail over a will because it is a negotiated instrument (meaning two parties negotiated and made an agreement, whereas a will is a unilateral document decided by one person). 



In conclusion, the interplay between prenuptial agreements and wills can be boiled down to one sentiment: prenups are a good supplement to a will, but they shouldn’t be used as the only estate planning tool. Prenups can do many things that supplement an estate plan, such as waiving the elective share, creating a requirement to get a will, and devising marital property to a surviving spouse. However, a prenup cannot accomplish all of the same things as a will. For instance, it cannot devise specific property to third parties or name a guardian for children.


Frequently Asked Questions (FAQs) about prenups and wills 

We know you have tons of questions on this topic, so we’ve pulled together some of the most frequently asked questions about the interplay between prenups and wills. 

Q: Can a prenup completely override a will if they clash?

A: It depends. It is possible, but it depends on the circumstances and the state law. 


Q: What can’t prenups do that wills can

A: Prenups cannot: 

  • Devise specific separate property to certain people, 
  • Name an executor 
  • Decide on a guardian for children 
  • Make funeral plans 
  • Determine who can make decisions on your behalf 


Q: In what ways can a prenup support an estate plan? 

A: A prenup can require a spouse to create a will, waive their elective share, ensure joint marital property goes to the surviving spouse, and reference a will.


Q: Are there any special considerations to make note of when creating a will if I already have a prenup?

A: You’ll want to make sure that you aren’t conflicting with anything in the prenup, and if you want to change something in your prenup, you should formally amend it. Remember, while it’s not 100% certain, there is a good chance that if you have conflicting terms in your prenup and will, the prenup will prevail, so make sure it is exactly how you want it! 


Q: Can I use a prenup to protect an inheritance?

A: If you think you might receive an inheritance from Grandma or Grandpa one day and you want to ensure it’s protected, you can do so through a prenup. You can make sure any and all inheritances are kept separate in the event of a divorce.

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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