What takes precedence during a conflict: A prenuptial agreement or will?

It is, generally speaking, a good idea to engage in planning for your future. Mistakes can be made when people assume that their current situation will remain the same shortly. The old saying: the only constant is change, is old for a reason. Our lives tend to change over time, and we tend to experience greater degrees of life change the more complex and interdependent our lives become. If you decided to live in a cabin alone for the rest of your life you may have relatively few changes, come across your doorstep.

However, when you are married and have a family there are many changes which could become relevant in your life. Unfortunately, not all changes which we encounter in life are positive. Sometimes we come face to face with changes that are more akin to challenges than anything else. The two D’s: death and divorce, are examples of the kind of changes and challenges that can confront you at any point in your life. While it is impossible to be completely prepared for either of these occurrences there are steps that you can take to be as prepared as possible.

The two documents which can prepare you for both death and divorce are a will and a prenuptial or nuptial property agreement. Both of these are fairly well-known legal documents in our culture so it may surprise you to learn that studies and research shows that most American adults die without a will. For prenuptial agreements, these are far from necessary in a functioning marriage, but they can nonetheless be helpful to agree to before the beginning of your marriage. Having both is not out of the ordinary but it can beg the question of which one trumps the other if they conflict.

This is what we will be discussing in today’s blog post from the Law Office of Bryan Fagan. We are going to dive into prenuptial agreements and wills. What they are, why they matter, and which one would win out if there was a conflict between the two. If you have any questions about the material contained in this blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Whether you have a question about a family law or estate planning matter, the attorneys with the Law Office of Bryan Fagan are eager to listen to your situation and answer your questions in a free-of-charge consultation.

What is a prenuptial agreement?

Getting married is a major step to take in a relationship. Going from dating a person to tying the knot signifies the end of your casual or even somewhat-committed phase of the relationship to a stage where you are fully committing to this person. That means you are considering your future not just as an individual but as a team alongside another person. Sometimes the transition from dating to engaged to married can go off without a hitch. However, there are some instances where it is easier said than done to make a marriage happen without any hiccups.

Financial problems are among the leading factors which can lead to divorce. Consider the different elements of a marriage and how each can be impacted by problems in the financial department. There are no attributes of a marriage that are not impacted by finances. With that said, likely, discussions regarding your finances are not among the five or six most discussed items at the dinner table with your finance. On top of that people seem to be focused more on keeping their finances separate from their spouse’s these days than in prior generations. What does this mean for you in a potential marriage?

Whether you know it or not, your finances are tied to those of your spouse. Texas is a community property state. This means that the property you accumulate during your marriage, the income you earn as well as the debt you build up during the marriage are all part of the community estate. Community property and debt must be divided in a divorce. If you are clueless about the financial circumstances of your spouse, then this is a potentially dangerous situation for you to be in.

Enter the prenuptial agreement. While you are still engaged, you and your fiancé can agree to negotiate how your estates are to be treated in the event of your marriage ending. The two most common ways for a marriage to end (and the two relevant topics of today’s blog post) are either by divorce or death. The prenuptial agreement sets the terms on how various debts and property owned by you and your spouse are to be treated at death or divorce.

You can also include provisions on how alimony is to be paid at the time of divorce. As opposed to other states in the country, Texas does not have laws that relate explicitly to alimony. Rather, Texas has laws that relate to spousal maintenance and contractual alimony. Contractual alimony can be agreed to between you and your spouse during divorce settlement negotiations. Spousal maintenance is spousal support that can only be ordered by a judge in a hearing or trial during the divorce. Temporary spousal support can be paid during the divorce. Spousal maintenance can be ordered by a judge to be paid from one ex-spouse to the other after a divorce.

People in your position end up wanting to enter into a prenuptial agreement for several reasons. You may have been married previously and do not want to expose your spouse to the unpleasantness which you remember from your first divorce. As a result, you figure that it is better to not involve her in any of the debt you inherited from your first marriage. In that scenario, you could include in your prenuptial agreement that no debts from your first marriage can, under any circumstances, go to your spouse in a future divorce.

Next, suppose that you are extremely wealthy and would like to be able to help your spouse-to-be after a future divorce from a financial perspective. You may be acknowledging that your fiancé does not have the education or work history to be able to provide for herself immediately after the divorce if you were to go in separate directions. In that case, you can provide your spouse with a certain amount of money each month for a limited period. This may be an amount that you both feel comfortable with and do not want to leave it to chance as it pertains to a future divorce trial.

It is easier to engage in negotiations with a fiancé with whom you are on good terms rather than a spouse who is going through a heated divorce with you. Nobody can tell the future of things like this. You have no idea if you are going to pass away during the marriage or get a divorce. However, it is better to work with your spouse while she is on your good side and vice versa than to need to work with her on the terms of divorce while you are not happy with one another. The whole tenor and tone of the negotiations can change due to the timing of them. Rather than risk needing to work with a spouse on negotiating a divorce once the marriage begins, why not do so before you even get married?

What is a will?

We have all seen a movie or watched a television show which had a plot element involving a will. A will, for those who do not know, is a legal document that sets forth an adult person’s desires as far as where his or her property will end up after he or she passes away. A will is the most basic, fundamental form of estate planning that we have in the United States and Texas. We at the Law Office of Bryan Fagan are fond of telling people that everyone needs a will once they turn 18. Whether you are rich or poor, you need a will. Not having a will makes the lives of your family members and other people in your life much more complicated. You can do everyone a favor and get a will drafted once you are able.

Getting back to the point I was making earlier; we have all seen the movie depicting the reading of a will. First, the person who created the will (the testator, in legal terms) is almost always an elderly man. More than that, he is an elderly man with money. Everyone in that room who is waiting to hear what the man has outlined in his will does so because he or she believes that a lot of property and money is coming their way. These are immediate relatives, friends, and other people who were close to the deceased individual. The air in the room is tense as the lawyer enters and either reads directly from the will or maybe switches on a video for everyone in attendance to watch.

The scene almost always involves something surprising. Either all of his assets are left to the loyal yet unappreciated employee of his, property is left in large part to a much younger and recently married wife or a completely unforeseen event occurs where all of the money is given to a charity. My point in going through all of this with you is that most of us are familiar with a will or at the very least are familiar with the concept of what a will represents.

A will is one of the most practical legal documents which you can create. What you need to keep in mind is that after you pass away you will have no control over what happens to your property in a physical sense. Once we are gone, we can have no input on how our property is treated. We can take steps during our lives to protect our property but when we die any direct autonomy over our property goes away.

Fortunately, the law allows us to make plans during our lives to set a plan in place as far as how our property is to be treated when we die. A will is a primary method for us to utilize when it comes to planning out how our property is to be distributed upon our passing. Contrary to what many people believe, there is nothing fancy or overly sophisticated about drafting a will. Rather, they will be relatively simple. Handwritten wills, known as holographic wills, are acceptable in Texas. Otherwise, the requirements in Texas for a will is that the document must be in writing and must be witnessed by at least two other people. If you can meet these basic requirements, then it is likely that you have drafted a valid will.

Within the will, a testator names an executor whose job it is to execute the wishes of the testator. That person should be responsible and have the intelligence to be able to follow the wishes of the testator. Drafting a will also help your estate from having to go through probate, potentially. Having to go through a probate court to distribute property means that there are additional expenses and time commitments involved. The longer the distribution process occurs the more likely that a large chunk of income will be Used to pay for court costs as well as creditor claims.

This brings us to the question posed by the title of today’s blog post. Namely: if a prenuptial agreement and a will conflict, which one takes precedence over the other?

Does a prenuptial agreement trump a will?

Ideally, your will and your prenuptial agreement should not conflict. Many times, people will create a prenuptial agreement and a will simultaneously so as not to run into a situation where one of the documents will conflict with the other. It is easy enough to find yourself in a situation where you drafted one document and waited a few years to draft the other. In that case, it is reasonable to expect that there may be some disagreement between the two documents especially if you have not done your homework as far as reviewing the initial document that was drafted.

The question remains, however, as to which document will trump the other if a will and your prenuptial agreement do not state the same things as far as the distribution of property. A Texas court would hold that the prenuptial agreement trumps any differences between it and your will.

However, there are some additional points that we would like to make regarding this discussion. For one, the prenuptial agreement would need to be enforceable to take precedence over the will. If you have a situation where a will and a prenuptial agreement are dueling documents, but a family court finds that the prenuptial agreement is unenforceable then an otherwise valid will would be the controlling document when it comes to financial instructions as well as the distribution of property upon your death. This underscores the importance of having an experienced family law attorney assist you with the drafting of your prenuptial agreement as well as having an experienced estate planning attorney assist you with the drafting of your will.

The prenuptial agreement should be specific as to which state’s laws will apply when it comes to interpreting the document. For example, if you and your fiancé want the prenuptial agreement to be applied using Texas law then you should specify this in your pre-nuptial agreement. This is important if you and your spouse, for example, decide to move to another state and one of you ends up dying in that other state. That state’s family laws would likely be the ones that apply to the enforceability of your prenuptial agreement unless you state otherwise in the prenuptial agreement itself.

Another circumstance where a will could trump a prenuptial agreement is if the prenuptial agreement contains a provision that states that it expires upon the occurrence of a certain event or after a certain period. When it comes to the enforceability of a prenuptial agreement one of the most important elements which you can control during the negotiation process is having an experienced attorney by your side. If both you and your fiancé are represented by counsel during the negotiation process it becomes much more difficult to argue that this is not a valid, enforceable document.

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  16. Should I sign a Texas Premarital or Prenuptial Agreement?


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