Will and Prenup: Which One Takes Priority?

  • Estate Planning
  • Wills
Will or Prenup: Which One Takes Priority? | Mario Godoy | Lombard Estate Planning Lawyer

Many couples getting married today enter into a prenuptial agreement, also called a premarital agreement or a prenup. Today many marriages are second or even third marriages, where each person has accumulated their own assets – and debt. Frequently marriages involve blended families, where one or both persons have children from a previous marriage or relationship. Many couples have both a will and prenup. To protect your loved ones and beneficiaries, it’s important that your legal documents complement each other, and not contradict each other.

Prenuptial agreements are legal contracts that are enforceable in Illinois under the Illinois Uniform Premarital Agreement Act.

5 Important Estate Planning Considerations If You Have a Prenup

1. Disclosure
A valid prenup must be legally signed by both parties in the marriage, while a will or trust is only signed by the individual creating the document. So while both individuals must have full disclosure of the facts to validate a premarital agreement, a persona’s legal spouse is not required to know the contents of a will in order for it to be valid and enforceable.

2. Priority
A prenup is executed before a marriage occurs, while a will can be made before or during the marriage. If a will contradicts the terms of a prenup, the heirs may have grounds to legally contest the validity of the will, and the courts will determine which document is enforceable when the terms contradict each other. The terms of a prenup are still enforceable in the event one spouse dies.

3. Asset Protect
A prenup can protect the assets you have at the time of your marriage and provide for your future marital property and debt. It likely does not discuss the distribution of your non-marital assets after your death, or who will be the executor of your estate. A will provides clear instructions on the distribution of your assets after your death.

4. Child Custody
A prenup is not enforceable for child custody and support issues. A will can name a guardian to protect any minor children and their inherited assets.

5. Estate Litigation
In blended families, the use of both a prenuptial agreement and a will can be used to strengthen your estate plan and minimize the risk of any unhappy family members challenging the will of a deceased parent or stepparent.

A prenuptial agreement can protect your loved ones and make your marriage stronger, and a will can continue to protect your loved ones after you are gone. To protect your loved ones and beneficiaries, it’s important that your will and prenup complement each other, and not contradict each other.

DuPage County Estate Planning Attorneys

The experienced estate planning attorneys at Estate and Probate Legal Group serve clients in Cook, Dupage, Kane, Lake, and Will counties in Illinois can advise you on the best options to protect your assets and loved ones. To talk to an estate planning attorney contact the Estate & Probate Legal Group at 630-687-9100.