Does a will supersede a prenup? 17 Answers as of May 02, 2014

I signed a prenup. Basically it states that I get nothing upon divorce or death. In the case of death, my husband's heirs gets everything. He doesn't have any heirs. He has parents, 2 sisters, nieces and nephews. I have 2 children from a previous marriage that he didn't legally adopt. I'm not listed on the house, bank accounts or any other assets he has. They are not specifically stated in the prenup as getting anything. My question is, if he dies without a Will what happens to his estate? Do I really get nothing? Does his family get it all? I'm asking because he travels a lot and he doesn't understand my worry and how he needs to be responsible. Does a Will override a prenup if it is written correctly or does it depend on how the prenup is stated? I really need these questions answered. I can't go to an attorney right now about this as he will know. I just want to get some information first. He doesn't see the importance. I just need it spelled out as simply as possible but as detailed as you can. Please help me. Thank you!

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Law Ofices of Edwin K. Niles | Edwin K. Niles
Yes, a will would do the job, especially if it mentions the pre-nup.
Answer Applies to: California
Replied: 5/2/2014
Stephens Gourley & Bywater | David A. Stephens
A will signed after a prenuptial agreement will generally supercede the prenuptial agreement.
Answer Applies to: Nevada
Replied: 5/2/2014
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
The legal effect of the prenup takes ahead of the will; anything titled in his name, will go to his parents, assuming they are living at time of death, and if not then to his siblings.
Answer Applies to: California
Replied: 5/2/2014
Sebby Law Office
Sebby Law Office | Jayne Sebby
Absent any special circumstances or state laws overriding, the terms of the prenup will probably stand. If your husband dies intestate (no will), state law will determine who inherits. Since neither you nor your children are entitled to anything (the prenup) and he doesn't have any children of his own, his estate will likely go to his parents or, if they're both deceased, to his sisters. As your name is not on the house, you would also need to find another place to live after his death.
Answer Applies to: Nebraska
Replied: 5/2/2014
Charles M. Schiff, Attorney at Law
Charles M. Schiff, Attorney at Law | Charles M. Schiff
Without seeing the pre-nuptial agreement itself and without information about how it was prepared, what you received as consideration for signing the document and your access to separate counsel when you signed it, it is difficult to give an opinion about its enforceability. They can be hard to enforce unless all the proper steps were followed. Each state may differ relative to requirements that need to be followed in preparing and executing a pre-nuptial agreement. If the agreement were determined to be unenforceable, you, as surviving spouse would be considered his primary heir. Your children would not be considered his heirs. It is inaccurate to say that your husband has no heirs. His parents, siblings and their children are his heirs. If your husband were to make a Will now, it would take precedence over the terms of the pre-nuptial agreement to any extent it was inconsistent with the pre-nuptial agreement.
Answer Applies to: Minnesota
Replied: 5/2/2014
    Ronald K. Nims LLC | Ronald K. Nims
    A prenuptial agreement or ante-nuptial agreement (they are two names for the same thing), means that the spouse gives up all rights she/he would have had to property in a divorce or death. Your husband's heirs are his parents, sisters, nieces and nephews, in the absence of a will, these heirs would receive all his assets. Because you singed a prenup, you don't have the right to "elect against the will". Your husband's will directs where his assets will go, without regard to his heirs. Most people write a will that distributes assets to their heir but a will can give the assets to almost anybody (most states still don't allow you to give your assets to pet). If your husband elects to give you a portion of his assets, despite the prenup, that's fine but if you husband decides to give all his assets to Heidi Klum, that's fine, too. (He could do worse than having all his friends and associates assuming that he must have had an affair with Heidi or why would have he have given her his $10 million.) If you are dependent on his income, I'd recommend that you buy a life insurance policy where he's the insured and you're the owner/beneficiary.
    Answer Applies to: Ohio
    Replied: 5/2/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    A will would overcome the prenup. He does have heirs - his parents first, then if they are dead his siblings, etc. The problem is that you agreed. Assuming you had adequate time to have the prenup reviewed by an attorney when you signed, you knew what you were getting in to. You might ask if he has named you as the beneficiary on any life insurance. If it is large enough, that could help.
    Answer Applies to: Idaho
    Replied: 5/2/2014
    James Law Group
    James Law Group | Christine James
    HIs heirs are his parents if he has no children. If his parents die before him, his siblings are his heirs. Yes if he dies without a will you will get only what the premarital agreement says you get. If he makes a will he needs to reference the premarital agreement and state that the will supercedes, at least in part, the prenup.
    Answer Applies to: California
    Replied: 5/2/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    The pre-nup says what it says and therefore you will not get anything on divorce or death unless it is specifically revoked or modified. He does have heirs, parents, sisters, nieces and nephews.
    Answer Applies to: Michigan
    Replied: 5/2/2014
    Frederick & Frederick PLC | James P Frederick
    The answer to your question depends on the terms of the prenup. Generally speaking, it is possible to by-pass a prenup by having assets titled jointly or by designating a beneficiary. For instance, if all of your assets are in joint names between you, you would be the owner upon his death, regardless of what the prenup says. MOST prenups allow people to by-pass the terms of the agreement through estate planning, as well. You would want to review the terms of the agreement to determine what yours provides. A Will is not the best way to accomplish what you are trying to do, however, because in order for its terms to be honored, you would need to go through probate. Probate will cost you thousands of dollars that could otherwise be avoided, by setting things up differently. Finally, your husband DOES have heirs. He may not have children or descendants. But the term "heir" means "the people who would inherit your estate, if you had no Will." In Michigan, that would be you, first, then his parents, then his siblings, siblings children, etc. Your prenup prevents you from inheriting, unless you make other arrangements. Your husband should take your concerns seriously, in my opinion. If he wants to make sure you are protected, then you may need to make some changes to your current plan.
    Answer Applies to: Michigan
    Replied: 5/2/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    If he does not make a Will the prenuptial agreement applies and you are entitled to what the prenuptial agreement provides, nothing more. If he makes a Will, after the prenuptial agreement was signed, he can leave you something, but that is his choice.
    Answer Applies to: Nevada
    Replied: 5/2/2014
    Law Office of Pamela Braynon | Pamela Y. Braynon
    This can get relatively involved but I will attempt to answer what I can in this small space. Basically, you as his spouse will receive it all if he dies without a will. However because of the prenup, I believe the judge will have to take it into account as far as the distribution. If he were to write a will, the will will be followed upon his death unless his heirs contest it and that will entail hearings that would depend on how the judge will rule.
    Answer Applies to: Florida
    Replied: 5/2/2014
    Danville Law Group | Scott Jordan
    A Will does not override a pre-marital agreement unless the Will states that it does.
    Answer Applies to: California
    Replied: 5/2/2014
    Attorney At Law | James G. Maguire
    A will would trump a pre-nup. Without a will, all of his assets would go to his family.
    Answer Applies to: Louisiana
    Replied: 5/2/2014
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Yes, if he makes a will leaving you things, that would "trump" the pre-nup. But if he dies without a will, having no children, probate law would say that you inherit everything. I'm frankly not sure how the pre-nup would work in that case someone would have to bring it into court; anyway, a contract between two people shouldn't be able to override state law. Someone would have to analyze the pre-nup itself, it's exact terms, in order to have a good answer for you. It may not even be valid at all.
    Answer Applies to: Oregon
    Replied: 5/2/2014
    Arthur H. Geffen, P.C.
    Arthur H. Geffen, P.C. | Arthur Geffen
    Generally speaking, a will does not supersede a prenup. The prenup remains enforceable after the death of the party or parties who signed it.
    Answer Applies to: Texas
    Replied: 5/2/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    If he does not revoke the Pre-Nuptial agreement either in a separate document or by specific language in his will or trust the pre-nuptial agreement is an enforceable contract that will control the disposition of his estate. If he were to retitle assets jointly with you that would be regarded as an intentional revocation of the application of the prenuptial as to the particular asset.
    Answer Applies to: Illinois
    Replied: 5/2/2014
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