Does a Prenuptial Agreement Supersede a Will?

Prenup heart

Maybe, the answer depends on the specific language in the prenuptial (prenup) agreement and the will. Typically, a prenup will predate a will and may set out how assets and estates should be divided upon the owner’s death. However, the best way to ensure that this is actually done is by specifically referencing your prenup in any subsequent will and establishing that the prenup shall control any assets or interests specified in the prenup itself. 

Is a prenup as good as a will if I do not have a will?

Possibly, in the event that a person does not leave a will before their death a prenup can serve as a will of sorts, but it will not be as helpful in probate proceedings. If there is no will at the time of death, the deceased’s estate will go through probate and the court will consider the intent of the prenup in the distribution of the estate, but it may not be controlling.

A will’s primary purpose is to facilitate the probate proceedings and specifically state how a deceased asset will be distributed; without a will a deceased person’s estate will be distributed by the laws of intestacy, which differ from state to state. 

Without a will with the recommended language that a prenup agreement should be followed the prenup will lend little to no aid in the probate proceedings. Should someone wish to have the divisions and breakdown of the prenup control then the will should have language that dictates that the prenup should control and supersede the breakdown within the will. A person can also make sure that the language in the will is identical to that in the prenup this will ensure that the division of assets of the estate in the prenup is followed. 

It is always recommended to speak to a trusts and estates attorney before drafting a prenup or will. 

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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