Planning your future with the one you love can be full of hope and some worry. Rarely is there a truer statement when dealing with a prenuptial or premarital agreement (prenup) and your last will and testament. While handling these tasks might seem daunting, making these plans is important. A skilled family law and estate planning attorney from Beller Law, PL can make the process easier. We have over 25 years of experience and focus on the unique needs of each client who asks for our help.
So, let’s discuss the following: Does a prenup override a will? The answer is that in many circumstances it can. Below, we explore some possibilities for how wills and prenuptial agreements interact so that you can make informed decisions about your love life and your family’s well-being.
What Is a Prenuptial Agreement?
A prenuptial agreement (called a premarital agreement in Florida) is a contract between two people made before they get married. Prenups typically outline how the couple will handle property, debts, and other financial matters during the marriage and in the event of divorce or death.
To be valid, a prenup must be:
- Written and signed by both parties;
- Voluntary and entered into without coercion or fraud; and
- Based on full and fair disclosure of each party’s assets, unless waived in writing.
Couples have a lot of leeway when deciding how to handle assets in their prenuptial agreement. However, one of the few limits on these agreements is that couples cannot adversely affect child support rights in their contract.
What Is a Will?
A will is a legal document that specifies how your assets will be distributed after your death. It can also appoint guardians for minor children and name an executor or personal representative to handle your estate. Florida law requires wills to be signed by the person making the will (the testator) and witnessed by two individuals.
Does a Prenup Override a Will?
In many cases, yes. First, a prenuptial agreement is a binding contract, and its terms regarding the succession of assets may prevail if the agreement is in writing and signed in front of two witnesses.
Second, Florida law allows testators to revoke all or part of their will in any writing that follows the same formalities required for wills. If a couple has a prenuptial agreement that is inconsistent with one of their wills, the prenuptial agreement can override the will if:
- The prenuptial agreement was written after the signing of the will,
- The testator of the will signed the prenuptial agreement, and
- Two individuals witnessed the testator sign the prenuptial agreement.
Whether you have concerns about retaining certain assets after a spouse’s death or ensuring that a prenuptial agreement doesn’t dictate the distribution of certain assets, Beller Law can help you achieve your goals.
Third, a prenuptial agreement might override certain terms in a will written after the couple married. In general, if a testator (person making the will) leaves property to the spouse, that gift in the will may fail if the parties later divorce. This makes sense because that spouse is no longer a spouse. But if the divorce court enforces the prenuptial agreement’s terms as part of the divorce decree, the prenuptial agreement will likely prevail over the terms of any will.
Does a Will Override a Prenup?
A will might override a prenuptial agreement if a party can prove that the prenup wasn’t properly executed or voluntary. But if a prenup was properly formed and signed and explicitly addressed certain assets, the will would likely not be able to undo the prenup’s terms.
Does Marriage Override a Will in Florida?
Marriage itself does not automatically override a will in Florida. However, surviving spouses in Florida may be entitled to certain legal protections, such as pretermitted spouse rights. A pretermitted spouse is someone who marries the testator after a will is executed and is not mentioned in the will. Unless the new spouse makes a waiver in a prenup, the pretermitted spouse is entitled to a share of the testator’s estate as if the testator died without a will (intestate).
How an Attorney Can Help
Wills and prenups are about good planning and leaving as little as possible to chance in times of tragedy or distress. If you want to plan well, navigating the relationship between prenuptial agreements and wills requires a deep understanding of Florida law.
Here’s how an attorney can assist you with your estate planning and family law needs:
- Drafting cohesive documents. An attorney can ensure your prenup and will work together seamlessly, avoiding contradictions that might lead to court battles.
- Explain your legal rights. Understanding spousal rights can help you make informed decisions about waivers and provisions in wills and prenups.
- Customize your estate plan. Every couple’s situation is unique. An attorney can tailor your estate plan to fit your needs and goals.
- Ensure compliance. Florida has specific rules for the validity of prenups and wills. An attorney can ensure your documents meet all legal requirements to make your agreements enforceable.
By speaking with an attorney before drafting any agreement, you can avoid conflicting terms that might create legal challenges and stress for your loved ones.
Make the Best Plans with Beller Law
Whether you’re planning to marry, revising your estate plan, or both, understanding how prenuptial agreements and wills interact under Florida law is crucial. At Beller Law, our award-winning legal team focuses on family law and estate planning matters for the Florida community. We have decades of experience and are here to guide you through important decisions that affect your loved ones.
Let’s work together to protect your future and ensure your wishes are clear and enforceable. Contact us online or by phone today to schedule a consultation and take the first step in securing your peace of mind.