When a spouse passes away, the legal steps that must be taken afterward can be exhausting in light of the grief you are also experiencing. In a perfect world, the decedent’s Last Will and Testament is submitted to the court for probate and his/her assets are eventually distributed to the beneficiaries named in that Will. What happens though, if you entered into a prenuptial agreement with your spouse prior to your marriage and the terms of that agreement now clash with the terms of the Will submitted to probate? The Indianapolis probate attorneys at Frank & Kraft explain what happens when a Prenuptial agreement and a Will clash during probate.
What Is a Prenuptial Agreement?
Also referred to as a pre-marital or antenuptial agreement, a prenuptial agreement is a legally enforceable agreement that is entered into by a couple in contemplation of marriage that creates a plan for how issues will be handled in the event of divorce or the death of a spouse. A prenuptial agreement must be finalized before the couple marries and will become effective as soon as the parties are legally married. A properly drafted and executed prenuptial agreement can be 100 percent enforceable in most states. The primary purpose of most pre-nuptial agreements is used to determine how assets will be divided in the event of divorce or death. Spousal support, or alimony, can also be addressed in a pre-nuptial agreement. This might entail one party waiving the right to request spousal support in the event of a divorce or it could set forth an alimony schedule based on factors such as the length of the marriage and/or the number of children born during the marriage. Note that issues relating to custody and/or support of the minor children of the marriage cannot be determined ahead of time. As a general rule, courts favor enforcing prenuptial agreements as long as the court is convinced that the agreement was entered into knowingly and voluntarily and the terms are clear and fair to both parties.
The Role of a Last Will and Testament during Probate
A Last Will and Testament is a legal document that allows the Testator (creator) to make decisions about how his/her assets will be distributed after death. A properly drafted Will can distribute an entire estate or just some of the estate assets owned by a decedent at the time of death. When a Will is located following the death of an individual, the Will must be submitted to the appropriate court for probate. Unless there is a challenge to the validity of the Will, the terms of the Will are eventually used to dictate how the estate assets are distributed.
What Happens When the Terms of a Prenuptial Agreement Contradict the Will?
For most parties, the primary purpose of a prenuptial agreement is to determine what happens to assets in the event of divorce or death. So if one spouse dies, the terms of that prenuptial agreement should make it clear what happens to the assets covered in the agreement, right? While that is, indeed, what happens most of the time, imagine a scenario where the decedent executed a Will after entering into the prenuptial agreement and the terms of that new Will conflict with the provisions of the prenuptial agreement. In that case, which document governs the distribution of assets?
There is no universally accepted rule when a prenuptial agreement conflicts with a Will; however, most probate courts will uphold and enforce the terms of a prenuptial agreement as long as the court is convinced that the agreement was entered into knowingly and voluntarily. Unless it can be proven that the prenuptial agreement was entered into under duress or was grossly unfair to one party, courts generally consider the agreement to be a contract that can be – and usually is – enforced.
Contact Indianapolis Probate Attorneys
For more information, please join us for one of our FREE seminars. If you have specific questions about a prenuptial agreement that conflicts with a Will, contact the experienced Indianapolis probate attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
- Steps to Take When Creating Your Will - July 8, 2020
- Trustee Discretion – How Much Is Too Much? - July 1, 2020
- How Do I Apply for Medicaid in Indiana? - June 24, 2020
