Prenuptial Agreement vs Will or a Trust

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I am married with a prenuptial agreement, do I also need a Will or a Trust?

A prenuptial agreement is a contract between spouses that binds you in the event of a death or divorce.  It sometimes addresses obligations during the marriage.  It can only be changed by mutual agreement.

A prenuptial agreement is not a testamentary document. Therefore, it does not pass title/ownership of assets at death.  For example, a surviving spouse cannot ask a title company, bank, or broker in placing a decedent’s asset in his or her name based just on the prenuptial agreement.

A testamentary document is necessary to pass assets at death.  That includes a will, trust, or a death beneficiary designation on an asset.  Society makes this distinction to avoid the problems of valuable assets passing to the wrong persons.

After a prenuptial agreement is signed, the spouses are bound to complete the testamentary documents that carry out the terms they have already agreed to.  For example, if the prenuptial states that you will leave your spouse the right to live in your home for his/her life and $100,000, you must then also prepare the testamentary document including those provisions.  This can be done with estate planning documents such as a will or revocable trust.  What is best for you turns on your specific situation.

Please contact the Law Offices of Nay & Friedenberg LLC at (503) 245-0894 to schedule an appointment with one of our attorneys. We will take the time to understand your needs and craft a plan specific to your unique situation.

Author Sam Friedenberg