Prenuptial Agreements – What Takes Priority Over a Will? 

A prenuptial agreement is a legal contract between two people who are married. It has broader legal stipulations than a will. For example, a prenuptial agreement can limit the surviving spouse’s right to inherit. This isn’t possible with a will. 

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Prenuptial agreements have broader legal reach than a will 

A prenuptial agreement is typically broader in scope than a will, and it may address more issues than just your estate. For example, a prenup may address spousal support obligations, or it can address the upbringing of your children or educational expenses. In addition, a prenup may address issues like the right to life insurance benefits. 

A prenuptial agreement may also restrict the amount of money either spouse can earn during the marriage. It can also limit the amount of debt each spouse can accumulate on their own. It can also limit the amount of money either spouse will have to pay spousal support in the event of a divorce. Unfortunately, these provisions can be complex to enforce, and they are not always upheld in court. 

They can contain terms that violate the law 

The language contained in a will or prenuptial agreement should be clear and concise. In addition, the agreement should not violate any laws. However, there are some cases where a will or prenup may contain terms that are illegal. 

These provisions may include limitations on one party’s earning capacity or require one party to meet debt obligations. Prenuptial agreements cannot also contain promises or conditions regarding child custody and visitation. 

They can include provisions that limit a surviving spouse’s right to inherit 

If you’re preparing to get married, you’ll likely want to include provisions in a prenuptial agreement or will that will limit a surviving spouse’s right of inheritance. By law, a surviving spouse is entitled to a share of a deceased spouse’s estate. However, that share is limited to one-third of the estate, which is approximately $25,000 per person. A prenuptial agreement can limit the surviving spouse’s right to inherit by naming a trustee or specifying that a life insurance policy or trust must be purchased. 

In addition to limiting a surviving spouse’s right to inheritance, a prenuptial agreement can change the rules of state law regarding how property is divided between the parties. For example, it can specify that a beach house should be leased to one spouse and inherited by the other. It can also address spousal support, including whether payments should be short-term or long-term, or whether they should be entirely eliminated. The agreement may also address rights to life insurance benefits and other issues. 

They can include provisions that are illegal 

In Florida, for example, a prenuptial agreement cannot include provisions regarding child custody or support. Those decisions must be made by the court. However, Florida courts generally honor certain waivers of alimony rights. The only exception is if a couple violated the law. A prenuptial agreement that encourages divorce is also likely to be invalidated. 

Another potential issue is the existence of gambling clauses. Such clauses may be illegal and could lead to a divorce. In addition, prenuptial agreements should not contain other provisions that encourage illegal behavior.