Prenuptial Agreements Effect on Wills
A prenuptial agreement is not a substitute for a last will and testament. The documents are completely separate. Most states have their own laws regarding asset distribution without a will.
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Will Created Before the Marriage
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Most state laws presume a spouse would want a portion of their estate left to their spouse if the last will and testament was signed before the marriage and not updated. The law would entitle the spouse to part of the estate. In most cases, the estate would go to probate.
Prenuptial Agreement Not Clear Enough
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If a will is updated or created after a marriage and excludes a spouse, the spouse is still entitled to a percentage of the estate. Unless the married couple agrees to waive their rights to each other's assets in the prenuptial agreement, the surviving spouse can claim up to 30 percent in some states.
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Prenuptial Agreement or Will?
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The will supersedes a prenuptial agreement. Even if something is stated in the prenuptial agreement, it may still be challenged. It is best to update a last will and testament with any changes such as a prenuptial agreement. Verbal agreements typically do not hold up in court.
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