There’s a big difference between a will and a prenuptial agreement.
A will, according to Harry Margolis, author of Get Your Ducks in a Row, is a legal document that states how a person wants assets distributed at death. It reflects intent, not a binding exchange. A prenuptial agreement, or prenup, is a contract entered into before marriage that sets out enforceable obligations between spouses.
And the question Margolis recently addressed in a recent interview is whether a pre-nup can override a will. What follows is an edited transcript of that conversation, revised for clarity and brevity.
Estate attorney Harry Margolis explains how prenups, wills and beneficiary designations interact — and why families are often surprised.
Photo by kroach on Getty Images
Does a prenup override a will?
Robert Powell: Increasingly, couples are told to create a prenuptial agreement. But people often wonder whether a prenup overrides a will they already have in place. Joining us to talk about that is Harry Margolis, author of Get Your Ducks in a Row.
Harry, welcome.
Harry Margolis: Good to see you.
Robert Powell: These are complicated questions.
Harry Margolis: Yes. There’s no straight answer for most of them. But prenups, in general, do override or overrule a will because they’re contracts.
If you entered into a contract agreeing to give your spouse a certain portion of your estate, or to meet other obligations under the prenup, and you don’t do that, then whoever benefits from that contract – a current spouse or surviving spouse – has a claim against your estate under the terms of the contract.
In practice, though, it can get difficult. People often ask whether a prenup overrides a will, but there are many ways to transfer assets other than through a will. Assets can pass through trusts, joint ownership or beneficiary designations.
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Those arrangements can be harder to challenge than a will because a will goes through probate court. Probate is public. There’s an inventory of assets, and it’s easier to attack or challenge if needed.
By contrast, other ways of avoiding probate are legal but private. They don’t fall under the jurisdiction of probate court, and that makes it harder to know what’s happening. If you want to challenge a transfer because it violates a prenup, it can be much more difficult.
Blended families raise the stakes
Robert Powell: I think of situations where someone remarries and has biological children. A will might say, “Leave everything to my children,” while a prenup says “assets go to the new spouse.” That’s where all heck breaks loose.
Harry Margolis: Right. In blended families, especially later marriages with two separate families, unintended outcomes are common. Often, people don’t get a prenup at all, which makes things even harder.
It can be very difficult to know what the person intended. Did they really want everything to go to the new spouse? Or did circumstances change later, perhaps when one spouse developed dementia, and the other began managing finances?
There’s often second-guessing because there’s little transparency. Whether it’s a prenup or a postnuptial agreement, having a written agreement about what people want can be extremely useful.
If someone clearly states they do or do not want to provide for their biological children, that clarity can protect the surviving spouse from legal challenges. Without that clarity, even the intended outcome may be challenged.
Aligning documents – and expectations
Robert Powell: It sounds like if someone has both a prenup and a will, it’s wise to talk with an estate planning attorney about how those documents coexist and whether there are conflicts to resolve.
Harry Margolis: Definitely. The will has to follow whatever was written and agreed to in the prenup, unless the parties later change their minds and reach a new agreement.
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It’s also very important to let family members know what’s been decided. Without that communication, families may have expectations that don’t match reality. When those expectations aren’t met, problems arise.
It’s better for families to be upset with a deceased parent than to blame a so-called wicked stepmother or stepfather.
Robert Powell: A reminder that people can submit questions at askharry.info. Thanks again, Harry.