Battles between prenuptial agreements and wills can sometimes be quite nasty, and which of the two documents ends up winning depends on the language used. Generally, prenuptial agreements predate wills and set out how the assets of a deceased spouse should be divided upon his or her death. However, the best way to make sure this actually occurs is by explicitly referencing the prenuptial agreement in any subsequent will and establishing that the prenuptial agreement will control any assets or interests specified in it.
A prenuptial agreement is a contract that essentially establishes how premarital assets owned by an engaged couple are divided. However, this type of contract can also contain other types of agreements. A Florida Last Will & Testament, on the other hand, establishes how an individual’s assets are to be distributed to their heirs and beneficiaries upon their death. Typically, people think prenuptial agreements are contracts engaged couples create exclusively to determine what will happen if they end up getting a divorce. Because of this, they may fail to see the connection that usually exists between prenuptial agreements and wills.
Prenuptial agreements come into effect when the marriage begins. Although they do establish how premarital assets are to be divided in the event the couple decides to get divorced, they also established how premarital assets are to be divided in the event one of the spouses passes away. Because prenuptial agreements allow spouses to enter into an agreement that goes beyond the legal scope of any Florida will, they can make subsequent wills stronger. Therefore, prenuptial agreements and wills can both reinforce each other and antagonize each other, depending on the case.
Prenuptial Agreements and Wills Have Limitations
Very few limitations apply to prenuptial agreements. For example, in a prenuptial agreement, the couple can agree to waive alimony in the event they get divorced, even if they are entitled to it. The couple can agree in writing that each will simply leave with the assets they brought in and split the post-marital assets 50/50 or any percentage they choose.
However, the parties to a prenuptial agreement cannot agree to something illegal. For example, a party to a prenuptial agreement is not allowed to waive their right to Medicaid or Social Security, as this would violate the law.
When it comes to Florida wills, on the other hand, statutory limitations apply. For example, generally, an individual cannot disinherit his or her spouse completely because spouses in Florida are entitled to an elective share, which amounts to the percentage of a decedent’s estate a spouse would receive if the decedent had not created a will.
When an individual dies without a will, a prenuptial agreement can help; however, it will not be as helpful during probate proceedings. If there is no will, when the decedent’s estate goes through Florida probate, the probate court will consider the intent of the prenuptial agreement in the distribution of the estate; however, the agreement may not have much control over what ends up happening.
The primary purpose of a will is to facilitate the probate proceedings by explicitly stating how a decedent’s assets are to be distributed. Without a will, a decedent’s estate is distributed in accordance with Florida’s laws of intestacy.
It is recommended to speak to an experienced Estate Planning Attorney before drafting prenuptial agreements and wills to make sure no mistakes are made, as even the tiniest one can cause colossal headaches during Florida probate proceedings.
If you are considering creating a will or a prenuptial agreement in Florida, contract Attorney Romy B. Jurado Esq. today by calling (305) 921-0976 or by sending an email to Romy@juradolawfirm.com to schedule an initial consultation.