If a couple has a prenup – a contract they signed before marriage setting forth how their assets and debts would be handled throughout and after their marriage – a common question they’ll have is: ‘does a prenup expire upon death?’. The answer is only if it explicitly says so – otherwise, even if one spouse dies, the prenuptial agreement will still be in effect.
Many individuals entering into a marriage with significant assets or children from a previous relationship may have anxieties about how their estate will be distributed in the event of their demise – and this is only complicated when they have a prenup.
Thus, you really need to know what your prenup does and does not say and how it interacts with your will and other estate planning documents.
Let’s take a closer look at this complex legal issue.
Prenup vs Will
A prenuptial agreement and a will are two distinct legal documents that serve different purposes.
What is a Prenup?
A prenup is a contract entered into before marriage, outlining the division of assets in the event of divorce or death.
What about a Will?
On the other hand, a will is a legal document that provides instructions for the distribution of an individual’s assets after their death.
How are they different?
While both documents can outline provisions for asset division upon death, they operate independently of each other.
A prenup does not automatically expire upon death unless it has a specific clause stating so.
However, if there is a conflict between the terms of the prenup and the will, legal complications can arise.
Depending on the state you are in, your prenup could prevail, or your will could prevail. It’s important to consult a family law and probate attorney in your state, to find out which will take precedence.
How Does a Prenuptial Agreement Affect a Will?
A prenuptial agreement can significantly influence the execution of a will.
If the prenup contains specific provisions regarding the division of assets upon death, these stipulations typically take precedence over contrary provisions in a will.
For instance, if a will leaves a piece of property to a child, but the prenup grants that same property to the surviving spouse, the prenup generally prevails.
However, this can vary based on the jurisdiction and specific circumstances surrounding the case.
Does a Prenup Expire Upon Death in Georgia?
In the state of Georgia, like many other states, a prenuptial agreement does not automatically expire upon death.
These agreements are designed to come into effect should the marriage end by divorce or death, with no intrinsic expiration dates.
However, the specific terms and conditions outlined in the prenuptial agreement could dictate whether it “expires” upon death or continues to have legal force.
Therefore, if there are provisions within the prenuptial agreement concerning asset division upon death, these will generally control the distribution of the estate, overriding even the terms of a legally executed will.
It’s noteworthy that the validity of both prenuptial agreements and wills are recognized by Georgia courts.
In case of any conflict between these two documents, the signing date is not the determining factor; instead, the terms of the prenuptial agreement typically take precedence.
We always recommend that you consult with a qualified attorney to understand the implications of your prenuptial agreement upon death. Don’t get caught unprepared.
Spouse Entitlement After Death
In the absence of a will or prenup, state laws often dictate that a surviving spouse is entitled to a significant portion, if not all, of the deceased spouse’s estate.
However, a valid prenup can alter this default rule.
If a prenup has provisions detailing the division of assets upon death, those provisions generally control.
Therefore, a spouse’s entitlement after death can be significantly influenced by the terms of the prenup.
Does a Prenup Override a Beneficiary?
In many cases, a prenup can override a beneficiary named in a will.
If the prenup and will conflict, the prenuptial agreement usually takes precedence.
However, some exceptions may apply, particularly if the prenup is found to be invalid or unenforceable for any reason.
Proving one over the other can result in costly litigation – make sure you speak with an attorney first, before you move to enforce either the prenup or the will.
It is crucial to understand that the intersection of prenups and estate planning is a complex area of law.
It is always advisable to consult with a qualified attorney or set of attorneys – either a family law attorney, a contract attorney, and/or probate or estate planning attorney – to ensure your rights and interests are adequately protected.