A prenuptial agreement can address more than just what assets each party gets in the event of a divorce. It can also contain provisions regarding what assets a spouse would get if the other spouse dies. However, just because a prenuptial agreement states that a spouse will inherit doesn’t mean that the prenup overrides a beneficiary designation in a will. In fact, a prenup won’t supersede the terms of a will because prenups and wills are subject to different requirements for validity and enforcement.
What Is the Difference Between Bequeathing Property in a Prenuptial Agreement and a Will?
A prenuptial agreement is a contract. If a party makes a promise in it and then fails to deliver on the promise, the other party can sue for breach of contract. That assumes that the agreement was negotiated and executed properly, including that it was signed by the parties and the signatures were duly notarized.
In contrast, a will controls the disposition of property after the testator’s death. There are strict requirements for a valid will. These include that it be signed by the testator in front of two disinterested witnesses. The testator must also declare in front of the witnesses that he or she is signing his or her will. The witnesses then sign a self-proving affidavit that they witnessed the testator sign the will. The purpose of these requirements is to guard against fraud because after death the testator is no longer alive to testify as to whether the will and its contents are valid.
There are several grounds for challenging a will. However, a breach of a contractual promise in a prenuptial agreement is not grounds for contesting the validity of the will.
What Happens If Your Spouse Did Not Leave You an Inheritance as Promised in a Prenuptial Agreement?
As noted above, a prenup cannot dictate the disposition of assets after death because of the significant differences in the requirements for a prenup as compared to a will. As a result, the recourse for a spouse who didn’t get a promised inheritance is to sue the estate in court for breach of contract.
Note that New York law gives the surviving spouse a legal right to one-third of the value of the decedent spouse’s estate unless he or she waives that right in a prenuptial agreement. Accordingly, a spouse may be able to take advantage of this provision if the deceased tried to disinherit the spouse.
Prenups give parties significant rights but there are limits. If you are considering a prenup or postnuptial agreement, it is important to have an attorney carefully negotiate and vet the terms to help ensure they are fair and enforceable to the extent possible. Please contact us to find out how we can assist you with your agreement.
