When you signed your prenup, you were probably thinking mostly about what happens if the marriage ends due to divorce, separation, or asset division. But many couples wonder: What if one spouse dies first? Does the prenup still matter? The short answer is, yes. Oftentimes, a prenup still matters, particularly if the prenup includes provisions about death. Although how much it matters depends heavily on specific state law, your estate planning documents, and exactly what your agreement says. What clause should I put in my prenup to address death? And, how do my other estate planning documents relate to my prenup?
How prenups and death interact
A prenuptial agreement is fundamentally a contract. While its primary trigger is often divorce, many prenups also include what’s known as a “death clause.” These are provisions that take effect if one spouse dies while married and if no divorce or separation action is pending. A death clause can say things like: “Separate property remains separate even after death,” or it can define what the surviving spouse should receive from the deceased spouse’s estate. If the prenup is properly drafted, signed voluntarily, and meets all legal formalities, death clauses are generally enforceable.
However, even without a death clause, the prenup may still carry weight. Courts may interpret the prenup’s terms alongside a will, trust, or estate‑planning instruments to see what the parties intended. But the prenup by itself does not override all default estate rules. If you die without a will, intestacy laws kick in. If your will contradicts your prenup, it depends on whether the prenup’s terms are enforceable, what the state allows, and whether legal formalities were followed when drafting and signing your prenup.
How state property laws shape what happens to your prenup at death
Every state has laws regarding what a surviving spouse is entitled to when their partner dies. These are often called “elective shares,” “statutory spousal shares,” or “forced heir‑ship rules,” depending on whether you live in a community property state or an equitable distribution state, and whether the deceased spouse had a valid will or died intestate, meaning without a will. These differences matter because state law provides default inheritance rules, but a prenuptial agreement can, in many cases, override those defaults if properly written and executed.
Community property states
In community property states such as California, Texas, Arizona, and Washington, any property acquired during the marriage is generally considered to be jointly owned in equal shares by both spouses. So, when one spouse dies without a will, the surviving spouse typically inherits the entire community property portion by default. However, separate property, which includes assets owned before the marriage or acquired by gift or inheritance, may be divided between the surviving spouse and other heirs, like children or parents, depending on the state’s rules. A well-drafted prenup can override the community property presumption by stating that certain assets will remain separate regardless of when or how they’re acquired. But to be enforceable at death, the prenup often must include a clear and voluntary waiver of the surviving spouse’s rights to inherit, which some states refer to as an “elective share” or “spousal share.” States like California have specific statutory requirements around these waivers, and if those aren’t met, courts may decline to enforce the prenup when probating the estate. Talk with an estate planning attorney in your state to receive guidance on your state’s laws related to the death of a spouse and the applicability of your prenup.
Equitable distribution states
In equitable distribution states, such as New York, Florida, or Illinois, the law doesn’t assume equal ownership of marital property. Instead, when someone dies without a will, the state’s intestacy statute decides how assets are distributed. These laws vary, but they usually give the surviving spouse a significant portion of the estate, especially if there are no children involved. For example, in New York, the surviving spouse inherits the first $50,000 of the estate plus half of the remaining assets if the deceased had children. In Illinois, the estate may be split equally between the spouse and the children. A prenup can be used to waive or modify the surviving spouse’s inheritance rights in these situations, too, but just like in community property states, the waiver must be voluntary, informed, and legally valid. Courts in equitable distribution states will typically examine whether the prenup included full financial disclosure, whether both parties had an opportunity to seek independent legal advice, and whether the terms were reasonably fair at the time of signing.
Intestacy laws
What becomes especially important is how the prenup interacts with intestacy law. Intestacy laws are the default rules that apply when someone dies without a will. Intestacy statutes act like a built-in estate plan, distributing property according to state rules. But if a prenup contains a valid and enforceable waiver of those inheritance rights, it can override the intestacy defaults. This is why it’s critical for prenups to be clear about property ownership, to specify what happens upon death, and to reference any waivers of statutory rights the surviving spouse would normally have. If the deceased spouse also left a will, courts will look at the prenup and the will together to determine how they align. Suppose the will contradicts the prenup, for example, by leaving more or less than what the prenup says the surviving spouse should receive. In that case, courts will assess which document is enforceable and whether both were entered into knowingly and fairly.
What to include in a prenup to handle death well
If you want your prenup to protect you and your spouse in death, here are important things to think about including in your agreement:
- A death clause: specifying what happens to separate property, what the surviving spouse will receive, and how you want marital property to be handled upon death.
- Waivers: Waivers or limitations of default inheritance rights or elective shares must be done clearly with full disclosure, and often with the surviving spouse’s informed consent.
- Matching estate planning documents: It is essential that you make sure your prenup is aligned with your other estate planning documents, such as your will and trust. If your will leaves assets in a way that conflicts with the prenup, courts may have to resolve or enforce based on what’s valid under law.
- Choice of law provisions: If you or your spouse own property in more than one state or moved around a lot. A clause clearly choosing a state will help determine what laws govern the enforcement of your prenup and its death clauses.
- Sunset or review clauses: If you want the ability to revisit or change terms over time, especially after children, business changes, or major financial shifts, a sunset clause can state at what point in time or after which certain life event, the terms of the agreement cease.
What to watch out for in your prenup
Even when you include clauses, there are ways things can go sideways. One limitation with prenups is that they usually cannot force certain inheritance or probate‑law protections to disappear entirely in states where those protections are mandatory. For example, some states limit how much you can waive of elective share rights or homestead protections. If the waiver in the prenup violates public policy, for example, makes one spouse destitute, or doesn’t give them a minimum of what the state law requires, the clause might be void.
Another pitfall to steer clear of is a lack of full financial disclosure. If one spouse hid assets or understated debts, a court might refuse to enforce death clauses or might invalidate the agreement entirely. Similarly, if the prenup was signed under duress or without the chance to consult an attorney, courts are more likely to scrutinize and possibly invalidate those parts. A benefit of consulting an attorney to draft your prenuptial agreement is that this legal professional should understand your state’s legal requirements for drafting and signing a prenup, and can guide you throughout the process to help ensure your agreement’s terms stand up to state law and that the signing process accomplishes all state-required steps.
Red flags in prenup terms include vague or generic references to “assets” without being more specific, failing to clarify if property is separate vs. marital, or failing to mention beneficiary designations in life insurance or retirement accounts. Another red flag is a prenup that refers to intangible terms like “my estate” or “my wishes” without tying them to specific documents (i.e., a will or trust). This is likely to create confusion in probate. Also, it’s risky if the prenup doesn’t refer to what happens if laws change or if there are multiple jurisdictions involved.
The bottom line on what happens to your prenup if your spouse dies
Estate administration is emotionally difficult and legally complex. Without clear prenup death clauses and aligned estate plans, surviving spouses often find themselves in unexpected legal fights with family, executors, or beneficiaries. Having these terms written down clearly is an effective way to care for your loved ones, reduce uncertainty, and ensure your wishes are honored fairly. When planning for the future through a prenup, it’s not just divorce that requires foresight. Death is a legal event too, and it’s one where clarity, documentation, and coordination between your prenup and estate plan can make all the difference.
Lauren Weber is a Florida family law and personal injury attorney. She specializes in crafting and negotiating prenuptial agreements from simple to complex situations. Attorney Weber takes a client-focused approach, ensuring personal guidance with each client, as she navigates them through the complexities of safeguarding their assets and securing equitable terms. Her dedication to preserving her client’s’ interests makes her a valuable advocate for those seeking clarity and protection.
Before embarking on her legal career, she dedicated over 12 years as a paralegal, gaining extensive experience in family law, estate planning, probate, and personal injury. When Attorney Weber not advocating for her clients, she finds joy in family and friends, indulging in her love for fishing, boating, music, and good food. She also enjoys being involved in her local community and is a member of the Greater Pasco Chamber of Commerce, West Pasco/Pinellas Business Association, and BNI Tampa.
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