When establishing your estate plan, don’t forget to review your prenuptial agreement for any clauses you and your spouse may have made before your marriage. As attorneys, if we are working with a new client setting up their estate plan, we often have to ask if a prenup is in place so we can review all conditions and clauses to ensure the will or trust works with the prenup. Many people do not understand how a prenup affects estate plans.
A prenuptial agreement is a formal written contract between you and your partner prior to the wedding. It outlines your choices for future actions that occur after the marriage. It can include the division of property in case of separation, divorce, or death.
Many may not realize that a prenup can protect your assets in the event of death. For example, there can be a provision in the prenup that states how much your spouse will receive upon your death, and perhaps the rest can go to the children of your first marriage.
Because of this, the prenuptial agreement and your estate plan must work together. If there is a conflict between the two, someone will more than likely contest the will. This can create hard feelings and often cause undo time and expenses settling the estate.
Another way the prenup and the will can work together is to include a in terrorem clause in the will.
An in terrorem clause (or no contest clause) is a provision in a will or trust that states that if a beneficiary challenges the will or trust, they will forfeit their inheritance. The intention of the clause is to discourage frivolous challenges to wills and trusts.
The good faith exception to the in terrorem clauses is intended to protect beneficiaries who have legitimate concerns about the validity of a will or trust. It also helps to ensure that wills and trusts are not challenged frivolously. According to the American Academy of Estate Planning Attorneys, Illinois will enforce the in terrorem clause unless the person contesting the will can show they are doing so in good faith.
It is possible to contest the will when doing so in good faith. Perhaps they think their parent was forced to write the will in a certain way. Suppose the beneficiary can show that they had a reasonable belief that the testator was under undue influence. In that case, they will get to keep their inheritance, even if the challenge is unsuccessful.
As you can see, it’s important to work with an experienced estate planning attorney. They can help you avoid conflicts between prenuptial agreements and your will or trust.
If you have questions about writing your will, an experienced estate planning lawyer can advise you on the best options for your situation. We understand all aspects that involve a cohesive plan. To talk to a qualified estate planning attorney in Oak Brook, contact the Estate & Probate Legal Group at 630-864-5835.
Areas We Serve: Cook, DuPage, Kane, Lake and Will counties.
