There are a wide variety of factors that can influence probate and the likelihood of probate litigation. Put another way, there are many different estate planning documents that play different roles in the probate process, in addition to trusts and the last will and testament. One of those legal documents is a prenuptial or marital agreement. In this article, our probate litigation lawyers will explain how prenuptial agreements affect the probate process, including probate litigation.
What is a prenuptial or marital agreement?
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.
Can a prenuptial agreement take priority over a will?
The answer is yes, a prenuptial agreement might take priority over a will or other estate planning instrument, depending on the specific provisions of the 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 probate litigation, it is determined that a will was invalid.
The reasoning 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 significance of the provisions of the prenuptial agreement
As our probate 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.
An example of probate litigation involving a prenuptial agreement
Northern Trust v. Shaw is an example of probate litigation involving a prenuptial agreement. In that case, the surviving wife sued her husband’s estate in order to recover the money she believed she was due pursuant to their prenuptial agreement. According to the terms of this particular agreement, the wife was only entitled to a portion of her husband’s estate, which included a lump sum of $500,000 among other assets.
At her husband’s death, the wife received certain assets from his estate based on state law, but she initiated probate litigation because she believed she was entitled to the $500,000 above and beyond what she inherited as his spouse. Ultimately, the probate court decided that the wife was, indeed, entitled to the additional $500,000 based on the terms of the prenuptial agreement.
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