A prenuptial agreement can be a valuable tool for couples to discuss and determine how they want to handle certain financial matters during their marriage and in the event of divorce. However, prenups can also contractually address the parties’ wishes regarding what assets will go to their spouse if they die. Importantly, the death of a spouse does not trigger the prenup and the distribution of assets. Instead, the spouse’s last will and testament goes into effect and any contractual rights to property contained in the prenuptial agreement become, at best, a potential claim against the estate of the deceased.
What Triggers a Prenuptial Agreement to Pay Money or Distribute Assets to a Spouse?
Generally, prenuptial agreements only become operative as stated therein. Typically, these triggering events include:
- One spouse gives the other spouse notice of the intent to divorce.
- A divorce action is started in the county where the couple lives.
- The couple executes a separation agreement that determines the disposition of assets.
The parties may provide for other triggering events in their prenup if they wish.
In the first scenario above, it is advisable to include a clause in the prenup that gives a party a cooling-off period during which time they can decide to withdraw the notice of the intent to divorce. The cooling-off period would allow for emotions to subside in the event the marriage is going through a difficult period so as to ensure that the decision to terminate the marriage is not emotionally driven. Typically, cooling-off periods would be somewhere between 30-90 days in length.
Importantly, death never triggers a prenuptial agreement. Only the decision to terminate the marriage does.
How Are the Terms of a Prenuptial Agreement Enforced After the Death of a Spouse?
A prenuptial agreement is a contract and, assuming it was properly negotiated and executed, it is enforceable in court. However, the prenup does not supersede a valid will Does a Prenup Override a Beneficiary Designation in a Will?. For example, if the prenup states that the surviving spouse is entitled to specific assets, but the deceased spouse’s will bequeaths those assets to someone else, the surviving spouse cannot challenge the will on the grounds that the prenup stated the assets would belong to the survivor. To be clear, a will controls the disposition of assets after death, or in the absence of a will, New York’s intestacy laws would apply. This is because the requirements for a valid will are more stringent than a prenup, so courts will not override the will on the basis of a prenuptial agreement. Accordingly, the survivor’s only recourse to enforce the prenup is to sue the deceased spouse’s estate for breach of contract.
Understanding when and how a prenuptial agreement applies is essential. Before signing a prenup, you should consult an experienced attorney to review and explain it to you to help ensure the agreement is fair and you have the information you need to make a well-informed decision. You should have a separate attorney from your fiancé to avoid a conflict of interest and protect your rights.
If you are considering a prenup or need to enforce one, contact us to discuss how we can help.
