There are many different factors that can affect probate and increase the possibility of trust and estate litigation. To explain it another way, there are several different estate planning tools that play different roles in the probate process, in addition to trusts and the last will and testament. One of those estate planning documents is the prenuptial agreement. In this article, our trust and estate litigation lawyers explain how prenuptial agreements affect the process and can lead to litigation.
Understanding how a prenuptial agreement works
The purpose of prenuptial agreements is to specify how the property of a married couple should be handled. For example, the agreement will typically spell out which spouse owns which property and who will receive what if the spouses ever divorce. In some cases, the prenuptial agreement will also include a stipulation as to how the spouses will draft their wills.
Prenuptial agreements may take priority over a will
Depending on the situation, a prenuptial agreement might take priority over a will or other estate planning instrument. It often depends on the specific provisions of that agreement. In some cases, the provisions of a prenuptial agreement will conflict with the provisions of the will of one of the spouses. In those cases, as our probate litigation lawyers recognize, litigation is the likely consequence.
When that happens, the probate court will determine whether to uphold the prenuptial agreement. But, if there is evidence brought by one of the heirs or beneficiaries of the will that the prenuptial agreement was executed under duress or some other factor that makes the agreement invalid, then the probate court may not enforce it. Another example is when the probate court determines that the prenuptial agreement was unfair or, in some way, encouraged divorce. On the other hand, if the court decides that the agreement was negotiated fairly by the spouses, then it will likely be enforced.
Prenuptial agreements may affect intestate distribution
When individuals die without a will or other estate planning tools, then their estate will be distributed by the probate court based on the laws of intestate succession in that state. When a prenuptial agreement exists in this situation, the terms of that agreement may be used by the probate court to distribute the estate property. This may also be the case if, through estate litigation, it is determined that a will was invalid.
The reason is that a prenuptial agreement is a contract and, because it is created while the deceased individual was alive and it addresses that individual’s property, the court may use the prenuptial agreement to distribute the property. Essentially, the prenuptial agreement may override state law in situations where a will may not. For example, the majority of states will not permit a spouse to write the other spouse out of her will entirely. Yet, in that same state, the court may allow a prenuptial agreement to do exactly that.
The effect of the terms of a prenuptial agreement
As our trust and estate litigation lawyers have experienced, the likelihood that a prenuptial agreement will take priority over a will depends on the specific provisions of the agreement. One of the first considerations is which state’s law should be applied. Many prenuptial agreements include provisions about which state law applies to enforce the agreement. This is particularly important when the agreement was executed in a different state than the one in which the spouse died. If there is no provision about the choice of laws, then the law of the state where the spouse died would be applied.
Trust and estate litigation can become an issue for several different reasons. Not every dispute will necessarily lead to litigation in court, but there are some issues that are more likely to bring people to court than others. Whether you are facing litigation initiated by someone else or you are considering filing a lawsuit yourself, our trust and estate litigation attorneys are here to help.
Download a FREE estate planning worksheet today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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