If you’re getting married and considering a prenuptial agreement, it’s important to understand when a prenup is triggered and when it ends. A prenuptial agreement is a valuable tool that encourages couples to discuss and decide how they want to handle certain financial matters during their marriage and in the event of divorce. It can also contractually address the parties’ wishes regarding which assets will pass to their spouse upon death, which thereafter must be put in each party’s will. The terms are enforceable in court as any contract would be, as long as the prenup remains in effect.
How Long Does a Prenup Last?
Prenups are signed before a couple gets married and go into effect upon marriage. Typically, they continue to operate until one spouse dies, another legal document supersedes the prenup or the prenup is triggered and assets are paid out to a spouse pursuant to a separation agreement that incorporates the terms of the prenup. Once assets are distributed, there is no more reason for the prenup, and it terminates.
What Happens to a Prenup When a Spouse Dies?
The death of a spouse terminates the prenuptial agreement, but it 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 a potential claim against the estate of the deceased.
A prenuptial agreement does not supersede a valid 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. However, the surviving spouse can bring an action against the decedent spouse’s estate to enforce the prenup for the value of or possibly specific performance of what he or she was promised under the prenup.
Under New York law, a will controls the disposition of assets after death, or in the absence of a will, the state’s intestacy laws apply. The prenup cannot dispose of assets 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.
When Is a Prenup Superseded by Another Agreement?
Amendments can be made to a prenup or the parties can enter into a post-nuptial agreement, which can replace a prenup. Spouses are free to negotiate new terms governing their financial matters and sign a post-nup at any time during their marriage. However, the post-nup should make it clear that the prenup is null and void to avoid any problems with inconsistencies between the two agreements.
A written separation agreement will also supersede a prenup. The terms of the prenup will be incorporated into the separation agreement, and the prenup will cease to operate.
What Triggers a Prenup to Pay Money or Distribute Assets to a Spouse?
Generally, prenuptial agreements only pay out when a triggering event occurs as specified in the agreement. Common triggers include:
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- 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 are between 30 and 90 days.
As noted above, death never triggers a prenuptial agreement. Only the decision to terminate the marriage does.
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 also have a separate attorney from your fiancé to avoid a conflict of interest and protect your rights and ensure as much as possible, the enforceability of the prenup.
If you are considering a prenup or need to enforce one, contact us to discuss how we can help.
