Can Prenups or Postnuptial Agreements Affect My Estate Plan?

Many couples sign a prenup or postnup at one point in their lives and make a will at another. Often, different lawyers write each one. Neither document may take the other into account.

A marital agreement can have a big effect on your estate plan. Sometimes the agreement controls what happens. Other times, your estate plan does. At Jimeno & Gray., our attorneys review both documents together for Maryland couples and look for places where they don’t match.

If you need to speak with an attorney about long-term planning and your estate, contact our law office today.

Key Takeaways:

Prenups and postnups interact with your will and other aspects of your estate plan.
The timing of when marital agreements and estate planning documents are signed are crucial whenever disputes arise.
Amending your estate plan or marital agreement when facts of situations change is recommended.
When getting married again, spouses in blended families can carefully consider their marital agreement and update their estate plan as needed.

Prenups and Postnups: The Basics of How They Work

A prenuptial agreement, or prenup, is a contract you sign before you get married. A postnuptial agreement, or postnup, is the same kind of contract, but you sign it after the wedding. Both explain what happens to your property, debts, and support if the marriage ends. That includes a marriage that ends in divorce and one that ends when a spouse dies.

Some states have a specific law that sets the rules for these agreements. Maryland does not. Maryland never adopted the Uniform Premarital Agreement Act, so courts use general contract rules and past court decisions instead. If someone challenges an agreement, a court may look at things like:

Whether both people shared full information about what they owned
Whether each person had enough time to read the agreement before signing
Whether either person had their own lawyer
How close to the wedding the agreement was signed
Whether the terms leave one spouse with almost nothing

No one factor decides the case. Maryland courts look at the whole picture. That’s why it matters to sign the agreement carefully and keep good records of what each person knew and when.

Core Estate Planning Documents and How They Work

An estate plan is made up of several documents. Some only take effect after you die. Others take effect if you become unable to make decisions for yourself. A marital agreement can affect both kinds.

Core Components of an Estate Plan

Here are four parts of a typical Maryland estate plan that a marital agreement can affect:

A Will: A will controls only the property that goes through probate. Probate is the court process for handling a person’s estate after they die. The will takes effect at death, and the court oversees the estate based on what the will says.
A Revocable Trust: A trust holds and manages your property while you are alive. After you die, the trust passes that property to the people you chose without going through probate. In Maryland, trust property may still count when figuring out how much a surviving spouse can claim.
Non-Probate Transfers: Retirement accounts, life insurance, and property you own jointly usually go to whoever is named on the account or title. Your will does not control them. A marital agreement may say these need to change, but the form on file with the company usually decides who gets the money.
Lifetime Gifts: Property you give away while you are alive usually leaves your estate right away. But some gifts may still count when figuring out what a surviving spouse can claim, even if you thought the gift was final.

If you look at the agreement without the estate plan, or the plan without the agreement, you may miss the places where they don’t match.

How Prenups and Postnups Interact with Wills and Trusts

In Maryland, a surviving spouse usually has the right to claim part of the estate, even if the will leaves them less. This is called the elective share. A valid marital agreement can waive, or give up, that right.

Under Maryland Code, Estates and Trusts § 3-403, the elective share is one-third of the estate if the person who died left children or other descendants. If there are no descendants, it’s one-half. The amount is reduced by other property the surviving spouse already receives.

The elective share doesn’t only apply to property that goes through probate. It can also reach revocable trusts, some jointly owned property, and some gifts made before death. Maryland expanded the elective share to include this kind of property. Many older agreements were written before that change, so they may waive much less than the couple thought.

What to Consider When Reviewing Your Prenup or Postnup

When reviewing an older agreement, check whether it clearly mentions each of these:

Property in a revocable trust set up during the marriage
Joint accounts that automatically pass to the surviving owner
Life insurance that names someone other than your spouse
Gifts made to children in the last few years before death
Retirement benefits already promised to a former spouse

These problems often don’t come up until someone dies. Fixing them while both spouses are alive and working together costs far less than fighting about them in court later.

Can a Prenuptial Agreement Override a Will?

Not in the way most people think. A prenup can’t change who inherits your house or who manages your estate. Those choices are in your will, and only a new will can change them.

What a prenup can do is stop your spouse from claiming more than your will gives them. Without a waiver, a surviving spouse can turn down what the will gives them and take the elective share instead. That can undo your plans, even though the will itself never changes.

An Example of This in Action

For example, say a couple lives in Severna Park. One spouse owns a waterfront home they bought years before the marriage. Their will leaves the home to their adult children from a first marriage.

Without a signed waiver, the surviving spouse could claim the elective share instead. To pay that share, the estate might have to sell the home.

For a prenup to protect your plan this way, it has to clearly cover what happens when a spouse dies. Many Maryland agreements explain how to split property in a divorce but say nothing about inheritance. Those agreements won’t stop a surviving spouse from claiming the elective share.

Can a Will Override a Prenuptial Agreement?

Partly. Your will can give your spouse more than the agreement promised. It can’t give them less than the agreement guarantees.

The order in which you sign things matters. Under Maryland Code, Estates and Trusts § 3-406, a spouse can give up inheritance rights in a written agreement, as long as they get full information about those rights first. A broad waiver gives up the elective share and the right to inherit if there’s no will. It also cancels gifts to that spouse in any will or revocable trust signed before the waiver.

Why Timing and Signing Dates Are So Crucial

If you signed your will before the agreement, the gifts to your spouse in that will are canceled. But if you sign a new will after the agreement, you can leave your spouse whatever you want. The waiver doesn’t stop you from choosing to give your spouse a gift later.

Problems with the order of documents are common and easy to miss. Check the dates on each of these:

Your current will compared with your agreement
Any later change to your will (called a codicil) that may have brought back a gift the waiver canceled
When you moved property into your trust, before or after the waiver
Whether a newer agreement replaced an older one
Whether you changed the names on any accounts after signing the agreement

The dates on your documents decide these disputes, not what you meant to do. Make a simple list of when you signed each document, in order. It can quickly show whether your documents work together.

Potential Disputes When a Marriage Comes to an End

Fights over marital agreements often follow the same pattern. One side says the agreement controls. The other side says it isn’t valid or doesn’t apply after a death. While they argue, the estate can be stuck, and both sides spend time and money.

These fights look different in a divorce than after a death. In a divorce, both spouses are alive and can tell the court what they meant when they signed. After a death, the person who could best explain the agreement can’t testify.

Issues That Could Lead to Disputes and Litigation

Some situations often lead to court fights. Look for these in your own documents:

Children from a first marriage whose interests conflict with a second spouse’s
An agreement that lists accounts that no longer exist
A trust that was changed after the agreement was signed, without updating the agreement to match
Adult stepchildren named to manage the estate
A business valued differently in different documents

The fix for each of these is the same: have your documents reviewed while everyone can still sign. A court fight after a death costs a family much more than updating the documents now.

How to Coordinate Your Marital Agreement and Estate Plan

Your agreement and your estate plan should use the same facts and numbers, and each should refer to the other. Most conflicts happen because the documents were written years apart by lawyers who never talked to each other.

A good review follows four steps, in this order:

Read the Agreement’s Estate Sections Carefully: Vague language about ‘property rights’ may or may not cover inheritance. The agreement should clearly mention the elective share and the family allowance, which is money the law sets aside for a surviving spouse right after a death. Clear language leaves much less room for argument.
Update the List of Assets Using Current Statements: Agreements often list accounts that have closed or changed. An updated list helps avoid fights over which property the agreement covers.
Name the Same People in Every Document: The person you name to manage your trust or estate should match what your agreement says. This keeps two people from claiming the same role.
Sign an Update When Things Change: A short amendment doesn’t cost much. It shows what both spouses agreed to and when.

Handling all four steps with one law firm helps keep your documents working together. Couples who use one firm for the agreement and a different one for the estate plan often don’t find the conflicts until a spouse dies. Our attorneys handle both Maryland family law and estate planning.

Prenups and Postnups for Remarriage: What You Should Consider

Second marriages often have the most at stake. Both spouses may already have children, retirement accounts, and a home. Without an agreement, Maryland law may give a new spouse rights that neither family expected.

If you didn’t sign a prenup, you can still sign a postnup after the wedding. Maryland allows spouses to waive inheritance rights either before or after marriage. Both spouses need to take part openly and share full information about what they own.

What Blended Families Should Consider

Blended families should settle some key questions in writing. Talk about these with your new spouse, and with your adult children, before either of you signs anything:

Which property should go to your children instead of your new spouse?
If you die first, can your spouse keep living in the house, and for how long?
Do either of you owe anything to a former spouse?
How will medical decisions be made if your adult children disagree?
What happens to a family business where your children work?

Put the answers in a signed agreement and an estate plan that matches it. This can keep your children from having to settle these questions in court.

How a Lawyer Can Help You See the Bigger Picture

A lawyer can review your marital agreement and your estate plan together, as one project. This doesn’t happen often enough, which is why many carefully written agreements lead to results no one wanted.

What Our Law Firm Can Do for Maryland Families and Individuals

Our attorneys can review your prenup or postnup alongside your estate plan and tell you clearly where they conflict. We can help whether you are writing your first agreement or checking one you signed years ago.

Your agreement and your will are both in effect right now. If something happens to you, a court may decide which one controls. Fixing a conflict is much easier while both spouses can still sign.

Get Sound Legal Guidance in Family Law and Estate Planning

The team at Jimeno & Gray can help you avoid costly mistakes in case of divorce and when planning for the future. To find out whether your prenup or postnuptial agreement and your estate plan actually agree, contact our law firm online.