What is a Prenuptial Agreement?
A prenuptial agreement is essentially a contract that determines how the assets created during a marriage are dealt with if the marriage ends in divorce or death. Often referred to colloquially as a "pre-nup," it is also referred to as an antenuptial agreement or premarital agreement. The purpose of such an agreement is to determine the rights each person will have to his or her property and determine what property will be considered separate and what will be considered joint. A prenuptial agreement attempts to circumvent the harsh results of a divorce by having one party agree to give up rights to requests that he or she would have had otherwise.
In Pennsylvania , the Uniform Premarital Agreement Act governs prenups. The Act sets out the rules for valid prenuptial contracts and what contracts may not cover. The rules say that the prenup must be made voluntarily, full disclosure of assets must be made, and the terms cannot be unfair. The agreements cannot be made in anticipation of divorce.
Often, a prenuptial agreement will cover such issues as the rights of each spouse to any estate to which the spouse either is given the appointment or is named a beneficiary. Agreements often regulate how property is held upon the death of a spouse or divorce.
Pennsylvania law allows spouses to make an agreement even before the engagement is made. For those who marry after executing the agreement, it is valid for up to 90 days after the marriage unless revoked in writing by both spouses.
The Importance of a Will in Your Estate Plan
A will is essentially a legal document that lays out how your property and assets will be divided amongst your heirs after you pass away. It is one of the central documents that can make up an estate plan, which also may include a living will, advance health care directive and other documents.
A will divvies up your assets among various beneficiaries, so it can include specific assets you want to leave to certain people. For example, you might have a family heirloom you’d like to hand down to a specific child or grandchild. You’re able to specify how you want your assets to be divided and the beneficiaries you want to receive them.
One part of a will involves naming a personal representative for your estate. Sometimes referred to as an executor, this person will work with the probate court to ensure the terms of the will are carried out. They will handle any relevant taxes, file the will and distribute the estate among its beneficiaries according to your wishes. Selecting a personal representative you can trust is incredibly important, especially if you have named minor children as beneficiaries of your estate.
You can also specify a guardian for your minor children through a will. This is vital if you die before your children reach adulthood and you don’t have a trust set up for them. If you have concerns about a potential guardian’s parenting style or ability to care for your children, you can disallow them from being named as a guardian within your will.
Wills can be contested by interested parties. The will must be filed with the probate court for a certain period of time, which gives anyone who may have a reason to contest it enough time to formally contest the will. A lawyer can help you through the process of contesting a will.
Even if someone successfully contests a will, however, it doesn’t mean your prenuptial agreement is invalidated. Prenuptial agreements are independent of a will, so a will shouldn’t be able to override any of the provisions of a prenuptial agreement.
Conflicts of Law: Wills Versus Prenuptial Agreements
As with most legal documents, conflicts between a will and a prenuptial agreement can arise. Such a conflict may occur if the will (generally an estate planning document) contradicts the terms of the prenuptial agreement, or vice versa. In such an instance, it is necessary to understand which document takes precedence over the conflicting provisions of the other document. For example, suppose that you have a will that leaves one-half of your estate to your child from another marriage, and a prenuptial agreement that contains general provisions disinheriting your children from your prior marriage. A conflict exists in such a case between the child-support provisions of the prenuptial agreement (i.e., the general provision disinheriting the children) and the provisions in your will. In determining which document controls, the courts generally do not give a prenuptial agreement the same status as a contract; instead, the courts analyze the agreement in the context of the entire family law estate plan. The general principle governing the interpretation of conflicting provisions in a prenuptial agreement and a will is that the prenuptial agreement does not destroy (disinherit) the pre-existing provisions of a will. Generally, a will has priority over a prenuptial agreement, unless the prenuptial agreement constitutes the entire accounting regarding the disposition of property upon death. When the prenuptial provisions are general in nature and the will is very specific regarding the disposition of property, the will controls. For example, if your will specifically provides for the creation of testamentary trusts for each of your children from a prior marriage and your prenuptial agreement is silent as to the creation of any trusts, a conflict exists and the will controls.
Which Document Takes Precedence?
There are a number of factors that can determine whether a will or a prenuptial agreement will take precedence. In general, certain factors weigh in favor of enforcement of a prenuptial agreement: Intent of the Parties. If a prenuptial agreement specifically addresses a particular asset, and the will grants that asset to another party or a trust, it may appear that the prenuptial agreement is being abrogated by the will. However, if the intent of the parties is clear, the prenuptial agreement will likely take precedence. Timing of Execution . If a prenuptial agreement is entered into after a party runs a beneficiary designation, or a codicil is thereafter entered into which revokes a prior will, if the prenuptial agreement is dated in-between, that timing may indicate intent that the prenuptial agreement prevail. Conversely, if the prenuptial agreement was entered into long before a will or codicil, and differs from those documents, the head start may indicate that the will and codicil control. Specificity of Terms. If an asset is addressed both in a prenuptial agreement and in a will, and the provisions are generally consistent, the prenuptial agreement may prevail. If, however, there are major inconsistencies, a court may not presume that the intent of the parties was to incorporate the prior provision into the will subsequently executed.
Scenarios and Case Law
To understand how the conflict between wills and prenuptial agreements has been adjudicated in the past, we can look at a few case studies. In the landmark case of Latham v. Cohn, decided in 1989, the California Supreme Court held that a will can, in some cases, override a prenuptial agreement if such an action is in line with the intent of the parties. The court suggested that a full re-evaluation of the contract at divorce could be appropriate. In this case, the court found that the prenuptial agreement was determined to be a contract of separation, thus rendering it invalid after divorce. In the Nebraska case of Bemis v. State Bank Trust Co., decided in 1980, the court held that a will that did not comply with the substitute for probate statute (Neb. Rev. Stat. § 30-2315) was valid nonetheless. This case established that, in the absence of a clear specification otherwise, a will does not terminate when a divorce is finalized. The Pennsylvania Superior Court in Van Etten v. Ellis provides another precedent where a will was found to be superior to a prenuptial agreement. Specifically, the court held that, at the time of death, the surviving spouse had an interest in the testator’s estate that superseded the terms of the prenuptial agreement. The court also held that the prospective inheritance gave the surviving spouse sufficient independent benefit to support the waiver of her right to elective share. Although every case is unique and state laws are varied, the outcomes in these case studies could indicate that, if challenged in court, a prenuptial agreement may not take priority over a will or other estate planning documents. That said, it is always advised to consult with an estate planning attorney who is well-versed in the relevant laws to get proper legal advice regarding how prenuptial agreements and wills might affect one another.
Legal Counsel: Harmonizing a Will to a Prenup
To avoid the problems of a conflict between a will and a prenuptial agreement, it is best practice to ensure that there are mutual revisions. A prenuptial agreement can include provisions that incorporate certain aspects of the prenup into the will. There can be wording in the prenuptial agreement that address the provisions of the will and also provisions of the will that addresses the prenuptial agreement. Some of the points for consideration to include are:
• How is property and assets treated if the marriage is dissolved?
• How are property or assets treated if the marriage continues until death of one of the parties?
• Will a trust be established to hold the assets?
• Provisions for tax payment.
• Appraisal issues of assets.
Legal guidance is needed when addressing how to draft wills and prenuptial agreements . It is very important to have these carefully worked out with an attorney who is knowledgeable in working with both. An attorney is experienced in taking into consideration equitable distribution laws, and what distribution is best for the person naming beneficiaries in a will. In this way, an attorney can determine the best way to address a prenuptial agreement so that the prenup and the will won’t be conflicting. There are many stipulations and nuances included within all the states wills, trusts and prenuptial agreements. Drafting tools can be set up that can help clients develop the right language for their specific situation. There are numerous online resources to gain guidance on how to link prenuptial agreements and wills. A person can also find information on government page websites. The Financial Industry Regulatory Authority (FINRA) provides some examples of what needs to be evaluated.