Prenuptial Agreements and Your Right to Inherit

A prenuptial agreement can do more than settle who keeps what in a divorce. It can also reshape what a surviving spouse is entitled to when one partner dies. Before you look at how a prenup changes things, it helps to understand what a spouse is owed under state law by default.

• What a surviving spouse is owed by default
• How a prenup can override state property rules
• What makes a prenup valid
• Why you still need a will or trust

What a surviving spouse is owed by default

Every state has rules that protect a surviving spouse's claim on property. These laws grew out of a simple worry: that a spouse who didn't earn income could be left with nothing when the earning spouse died. States handle this protection one of two ways, depending on whether they follow common law or community property rules. Common law states give the surviving spouse a right to inherit a share of the deceased spouse's property. Community property states instead give each spouse an ownership stake in property earned during the marriage while both are still alive. A prenup can matter under either system.

Elective share: the right to inherit in common law states

In a common law state, if you don't have a prenup, your spouse can inherit from you when you die, regardless of what your will says. Say your will leaves your spouse very little or nothing. After you die, your spouse doesn't have to accept that. They can choose between:

• accepting whatever your will actually gives them, or
• claiming the "elective share" instead.

The elective share is the floor amount state law guarantees a spouse, and it usually matches what a spouse would get if you'd died without a will at all. It's typically calculated as a fixed portion of the estate, often one-third or one-half, though the exact fraction can shift depending on how long the marriage lasted and whether there are children.

In practical terms: if you live in a common law state and your will gives your spouse less than the elective share, your spouse can override your will and claim that share instead. That means your spouse ends up with more than you planned, and everyone else you named in your will ends up with less.

Community property: ownership rights during the marriage

In a community property state, without a prenup, your spouse automatically owns half of everything you earn or acquire during the marriage. You're free to leave your separate property to whomever you choose after death. Separate property here means things like gifts, inheritances, and anything you owned before the wedding. You can direct where your half of the community property goes in your will or other estate planning documents, but you can't give away your spouse's half without their consent — unless a prenup says otherwise.

How a prenup can override state property rules

A prenuptial agreement lets spouses spell out, in advance, who owns what and what each of you is entitled to after the other dies. Whatever you both agree to in that document takes priority over the default protections built into state law. That means elective share rules and community property rules can be set aside if your prenup says something different.

For instance, suppose you want most of your estate to go to children from an earlier marriage, leaving your current spouse very little. Your spouse can agree, in the prenup, to waive their elective share entirely.

A prenup also lets you and your spouse define upfront which assets count as separate property and which count as marital or community property, which in turn changes what your spouse can inherit from you later. The same tool can be used to waive rights to each other's retirement accounts, or to declare that whatever either of you earns stays that person's separate property — overriding the usual community property default.

What makes a prenup valid

Courts generally look for a few things before they'll enforce a prenuptial agreement:

• Both spouses entered into it willingly.
• Both spouses disclosed their finances fully and honestly.
• Both spouses had a real chance to consult their own lawyer.
• The terms are fair.

If a spouse challenges the agreement later, a court typically weighs both procedural and substantive fairness before deciding whether to uphold it. Procedural fairness looks at the circumstances around signing — for example, whether the spouse had enough time to review the agreement, or whether it was handed over the night before the wedding, which can look like pressure or duress. Substantive fairness asks whether the actual terms treat both spouses reasonably. States don't all agree on the timing question either — some only require fairness at the moment the prenup was signed, while others also expect it to hold up as fair when it's actually applied, whether that's at divorce or at death. A prenup that would leave a spouse destitute is unlikely to survive a court challenge.

Prenuptial agreement law varies significantly by state and can get complicated fast, so you'll want a lawyer's guidance to put one together properly. That said, couples can sketch out the basic terms themselves before bringing in an attorney to finalize things.

Why you still need a will or trust

A prenup can shape what happens to your property after death, but it isn't a substitute for an estate plan — the two are meant to work together. Your prenup, for example, might establish which assets are your separate property, while your will or trust then decides who actually receives that property when you die. Or your prenup might waive your spouse's elective share, while your will separately directs that your spouse still receive a few specific items from your estate.

An estate plan covers a lot of ground that a prenup simply can't touch. Use your estate plan to:

• Decide who inherits your property when you die
• Name an executor to carry out your wishes
• Nominate a guardian for minor children
• Choose who can make financial or medical decisions on your behalf if you can't
• Spell out your end-of-life or emergency medical care wishes, and
• Set out your wishes for burial, cremation, or funeral arrangements

So even as you're working out a prenup, make time to build a complete estate plan too. It protects you, your spouse, and everyone else who depends on you. A local estate planning attorney can help you put the pieces together, since the specifics will depend on your state's laws and your family's situation.