Getting married is a joyous occasion, but blending finances and planning for the future can be challenging. These challenges are especially evident if you have significant assets, children from a prior marriage, or specific inheritance goals. However, a prenuptial agreement may be your solution to many financial questions during and after your marriage. A prenuptial agreement can also be part of your estate plan to protect your assets for your loved ones after you pass. Does a prenup override a trust or will? Sometimes, but it depends on your unique circumstances.
Harris Law Firm can obtain the results you want in estate planning and marital matters. We have been protecting clients in Mississippi since 1981 and are on the cutting edge of finding the best legal solutions for every client.
What Is a Prenup?
Many clients wonder, What is a prenup? A prenuptial agreement, or “prenup,” is a binding pre-marriage contract that defines how spouses will handle their finances if they split. It can give spouses increased control over what will happen to their property and liabilities at the end of their marriage.
Mississippi courts require prenuptial agreements to meet the following legal standards to be enforceable:
- Must be a voluntary agreement. Both spouses must enter the agreement willingly and without being forced.
- Must involve full and fair financial disclosures. Each party must disclose their assets, debts, and income fully and honestly. Failure to disclose can invalidate the agreement.
- Execution must be fair. The agreement must have been considered fair and reasonable when it was signed. Fairness could include giving both parties adequate time to review the agreement or opportunities to speak to counsel about contract terms.
- Terms must be fair to both spouses. A one-sided prenuptial agreement is likely unfair and unenforceable.
If your prenup is enforceable, it can be a handy estate planning tool when used with wills and trusts.
How Wills and Probate Work in Mississippi
A will outlines how to distribute a person’s assets after they die. Your will can provide resources for your children, a new spouse, or anyone you want to protect. Mississippi wills must meet certain requirements to be valid, including:
- The testator (the person making the will) must be at least 18 and of sound mind; and
- The will must be written and signed by the testator.
If the testator does not write the will themselves, two or more witnesses must attest to the will in the testator’s presence.
After a testator’s death, their will enters probate. Probate is a court-supervised process that verifies the will’s validity, identifies the decedent’s assets, pays debts and taxes, and distributes the remaining assets to beneficiaries.
How Trusts Work for Estate Planning
Probate can be time-consuming and costly, so many people use trusts to avoid the process and fast-track their assets to their children and other loved ones. A trust is a legal arrangement where one party (the grantor) transfers their assets to a trustee to manage for the benefit of designated beneficiaries. Generally, the grantor’s trust assets bypass probate when the grantor dies and pass directly to the trust beneficiaries.
Two types of trusts that a grantor might consider for managing their estate include:
- Revocable living trusts. These trusts allow the grantor to retain control over their assets during their lifetime and specify how to distribute assets upon death.
- Irrevocable trusts. Once created, these trusts cannot be altered or revoked. They are often used to protect assets from creditors, provide for long-term care planning, or reduce estate taxes.
Once you understand your needs and goals, a trust can be an essential component of your estate plan.
When Does a Prenup Override a Trust or Will?
Sometimes, a will or trust can cancel the provisions of a prenup, and sometimes, prenup provisions take priority over other estate planning documents. How these documents interact often depends on timing and the details in each case.
Overriding a Will
A testator can change their will by doing any of the following:
- Destroying it,
- Canceling it,
- Making a subsequent will,
- Amending it (creating a codicil), or
- Making a new declaration.
Any amendments, new wills, or declarations made after an initial will must be in writing and signed to be effective. An enforceable prenuptial agreement that spouses enter and sign after a spouse makes a will might override will provisions that deal with the same property.
Overriding a Trust
A grantor can change a revocable trust by:
- Following the amendment or revocation procedures in the trust; or
- Providing clear and convincing evidence of the grantor’s intent to change the trust.
A subsequent prenuptial agreement with provisions that conflict with a revocable trust can be clear and convincing evidence that the grantor intended to change the trust according to the prenuptial agreement’s terms.
A grantor can revoke or modify a noncharitable irrevocable trust if they have the consent of all their trust beneficiaries. So, if the grantor’s ex-spouse is the only beneficiary and the spouses had a subsequent prenuptial agreement with different terms, that prenuptial agreement can be the consent to override the trust terms. If a trust has multiple beneficiaries, the following can happen:
- All beneficiaries can agree to let the prenup override; or
- A court can approve the prenup overriding if the interests of nonconsenting beneficiaries will have adequate protection.
We can explain your options when you have questions about how your prenup might affect any estate planning matters you face.
Contact Us Today
Does a prenup override a trust or will? It can. At Harris Law Firm, we have decades of experience in family law and estate planning to help ensure your wishes are protected during significant life events. Call us today or visit our website to schedule an appointment.
Resource List
- Mississippi Code, §91-5-3, link.
- Mississippi Code, §91-8-602, link.
- Mississippi Code, §91-8-411, link.
RATE THIS POST
Loading...