A last will and testament is a legal document that establishes the wishes of the deceased in terms of how their assets should be divided among heirs following their death. However, in many jurisdictions, a surviving spouse may have rights that supersede the will. Laws vary from jurisdiction to jurisdiction, but in many cases a spouse will have strong rights to contest a will that disinherits them.

Having a prenuptial agreement in place can help prevent conflict over who has the right to inherit, particularly in cases of second or further marriages. The probate court will have the final say over which document gets precedence, but generally a prenuptial agreement will hold sway unless there are mitigating circumstances.

Couples who are already married but want to specify terms for financial arrangements can enter into a post-nuptial contract – more information about these can be seen in the embedded PDF.

Attorney-at-law Dr Edgar Paltzer specialises in all matters pertaining to estate planning, including inheritance disputes. Having a pre-nuptial agreement in place can help prevent disputes from arising and reduce the risk of family conflict.

Providing for Dependents

In cases of second, third or further marriages, a prenuptial agreement can be essential to protect the rights of children from earlier marriages.

If there is no agreement in place, the current spouse may be granted full control of all assets by the courts, meaning older children lose their inheritance. If the children from a previous marriage are still young enough to be financially dependent, this has the potential to be devastating.

Even when children from earlier marriages are adults, family conflict may arise if they are not named as beneficiaries of the will, which can be avoided if a prenuptial agreement has been put in place.

Multiple Assets

In cases of subsequent marriages, there are often more assets to be considered. When people have previously been divorced, they are more likely to own property individually. There may also be multiple retirement plans, more savings, or other assets to consider. A prenuptial agreement helps define which assets are coming into the marriage and which are being ring-fenced for the benefit of children or ex-partners.

More information about ring-fencing assets can be found in the attached short video.

Intestacy Laws

The laws of intestacy mean that if an individual dies without having written a valid last will and testament, the courts must decide how their assets are to be divided. Each jurisdiction has its own specific intestacy laws that the courts will follow.

While these do vary, the majority of the time assets would end up going to the surviving spouse if there is no legal agreement to specify otherwise. Courts would be likely to use the terms of the prenuptial as a guide if it exists, as although not a will, it is still a legal document.

Conflict

In some cases when a person dies and there are both a prenuptial agreement and a last will and testament in place, these documents contradict each other. If this situation arises, it would again be up to the courts to make the final decision on which document holds precedence.

A court hearing would be required, which would eat into the value of the disputed estate or the purses of the parties involved in the dispute. The way the courts would rule depends largely on the wording of each document.

The infographic attachment looks at some of the main non-probate assets that cannot be included in a last will and testament.