Does a will take priority over a prenup?

Drafting a Will

As individuals begin to age, they begin thinking about their future and are concerned that once they pass away their best interests will not be upheld. This does not have to be the case, as drafting a will guarantees that one’s wishes are upheld.  A will is a legal document that serves to outline your wishes in regards to how you would like your children to be cared for and the distribution of your assets upon your death. This document is imperative in guaranteeing that your wishes and best interests are met to the greatest extent possible. Without a will present, the court will be responsible for making the decisions concerning your assets and loved ones. In most cases, the court’s decision does not align with the plans you initially had in mind. A will is not permanent, for you must be able to make changes in relation to the changes that take place in your life. With the passing of time or the occurrence of any major event that changes your financial assets you may make changes to your will that reflect these changes in your life. In the case that an individual stated as a beneficiary within the will passes away, you will need to update your will. Additionally, in the case that your financial assets have grown, you will need to update your will to create a plan for those assets. Drafting a will or changing a will is not difficult as long as you have the proper guidance and support of an esteemed Estate Planning Attorney. The lawyer will assist you through the process of ensuring that your will is a direct indication of your interests and wishes for your future.

Does a will take priority over a prenup?

Similarities and Differences Between a Prenup and a Will

A prenup is often confused with a will due to similarities in the documents, yet they are actually very different. A prenup, also commonly referred to as a prenuptial agreement is a document signed by you and your spouse prior to legally getting married. This document defines the exact actions of what  would happen to the financial assets during a marriage and in the case of a divorce. Most believe that a prenup is only necessary for those with extreme wealth who are a part of the upper socio-economic class. This is a common misconception, as a prenup is effective for a variety of different reasons and appeals to the middle socio-economic class too. A prenup is beneficial in clarifying financial rights, as it directly states responsibilities regarding financial assets during marriage. They are also beneficial in getting protection from spousal debts. Many couples opt for a prenup in the case that they wish to pass separate property to children from prior marriages. Without making a prenup, the state has the right to make decisions concerning your financial assets. Similarly, without a will in place the state has the right to make decisions on behalf of the deceased individual. In creating both a prenuptial agreement and a will, individuals can be certain that their best interests and wishes concerning their assets and loved ones are met. Prenuptial agreements are legally binding documents that divide premarital assets and other agreements between partners. Wills on the contrary, describe the distribution of financial assets to heirs once an individual passes away.

Identifying Priority in Prenups and Wills

After the death of a spouse, a prenup will take priority over a will. In the case that one of the spouses involved in the prenup agreement passed away, the other spouse is still subject to the agreement if they are alive and well. They will be the ones to receive the property stated within the will due to the content of the prenup. Prenuptial agreements contain a forum selection clause which outlines the specific New York State laws that will apply to the agreement being contested. A forum selection clause is an agreement by both parties to handle disputes resulting from the contract.

Wills May Have Priority over Prenups based on the Circumstances

In the case that a prenup is not enforced within the court, then the will becomes the primary ruling document. If the agreement was unjustly created in the state of coercion or if the contract is only fair to one party, wills may take over the power of prenuptial agreements if it contains a sunset clause. This refers to ending a contract once a certain period of time has passed or in the aftermath of a specific event.  If for any specific reason New York State decides that the will has priority over the prenuptial agreement, then the will is going to be enforced.

Dying Intestate- Passing Away Without a Will

If an individual passed away without having a will, the person is considered to have died intestate. Once this occurs the intestacy laws in New York will decide how the decedent’s property will be distributed. Without a last will and testament, the surviving spouse inherits the entire probate estate in the case that there are no children or other descendants. The estate will still have to pass through the probate process if it has a value of over $30,000. Without a will in place, the court will decide how the assets will be distributed, which could potentially counter the wishes and best interests of the decedent.  A spouse that survives the decedent will inherit $50,000 of the intestate property, and any surviving children inherit the remaining balance.  If you pass away without any living family remaining, then the state will uphold your property, however this occurs extremely rarely. If there is no will present, then there is a set regulation for who can file for administration or a small estate. Commonly, the "closest distributee” is responsible for filing for administration or small estate.

For further Estate Planning inquiries please contact the Law Office of Inna Fershteyn at 718-333-2394 to best prepare for your future through will drafting, power of attorney, health care proxy, and living will documentation.