Do Prenups Apply in the Event of Death?
Most people know that a prenuptial agreement governs what happens to property in the event of divorce.
But, you can also include provisions regarding death!
Prenups Can Limit Spouse’s Inheritance Rights
Why would someone want a prenup to limit their spouse’s inheritance? After all, they were still married at time of death.
Reason: Children from prior relationships. If this is not your first marriage, you may have children from a prior marriage that you would rather leave your assets to. *(Ahem, Anna Nicole Smith).
Law Does Not Allow You to Disinherit Your Spouse With a Will
In general, the law doesn’t allow you to use a will to disinherit your spouse. Probate laws protect current spouses. If you leave them out of the will, they’re called “omitted spouses”.
“Omitted spouses” are entitled to an “elective share” of the deceased’s estate , which could be as much as 1/2 or 1/3, depending on which state.
Even if the will specifically says all of a deceased’s assets go to the adult children of the first or second marriage, the current spouse still receives an elective share.
A valid will cannot override the law.
You can imagine all the “unfair” scenarios that can happen here. Ahem, Anna Nicole Smith v J Howard Marshall’s son.
If You Want to Disinherit Your Spouse, Use a Prenup
Obviously, no one likes to be “disinherited”. However, if you have children from a prior marriage, it is understandable why you would want to protect them in the event you die a mere days or months into your second or later marriage.
A valid prenuptial agreement can spell out exactly what your spouse receives in the event of death. A valid prenuptial can override state laws.
Operative Word Is Valid
The Prenuptial Agreement must be enforceable by law and must not have a sunset clause that expired. By the way, I personally don’t like sunset clauses. Sunsets are beautiful but not for prenups.
What Do You Do With a Prenup When Spouse Dies?
If you have a valid estate plan and your prenup does not conflict with it (or does not mention anything about estate plans), then your prenup can be destroyed.
If the prenup conflicts with an estate plan, or there IS no estate plan, keep it! It may help you! The prenup is still good, because it is a contract between two parties, and the contract is still binding if one party to the agreement is still alive.
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