pre-nuptial agreement question

pre-nuptial agreement question

geodav	2/3/2004 10:38:15 PM
Does a will negate a pre-nuptial agreement? There is a pre-nuptial agreement saying that what belongs to each before marriage remains theirs. In the will the deceased spouse leaves 1/2 of the premarital assets assets to the widow and 1/2 to the children. There's a CD in the deceased persons name (not joint) that was owned before marriage. The children say that according to the will they should get it all since it is a premarital asset. Which takes precedence the will or the pre-nuptial?



"tomG"	2/3/2004 10:12:39 PM
"geodav" <geodav@bellsouth.net> wrote in message news:40206927.2080203@bellsouth.net... Does a will negate a pre-nuptial agreement? There is a pre-nuptial agreement saying that what belongs to each before marriage remains theirs. In the will the deceased spouse leaves 1/2 of the premarital assets assets to the widow and 1/2 to the children. There's a CD in the deceased persons name (not joint) that was owned before marriage. The children say that according to the will they should get it all since it is a premarital asset. Which takes precedence the will or the pre-nuptial? Debts of a decedent are payable before inheritances, provided that the debt is valid and the creditor doesn't lose his/her rights by failing to file a proper claim against the estate. Heirs only receive what is left after the decedent's debts are paid. Rights under the pre-nup are creditor rights, so to speak, and get paid before distributions to heirs under the will. In that sense the pre-nup takes "precedence" over the will, but it does not actually "negate" the will.



geodav	2/4/2004 5:11:11 AM
So the proceeds of the CD are split between the widow and the deceased children? tomG wrote: "geodav" <geodav@bellsouth.net> wrote in message news:40206927.2080203@bellsouth.net... Debts of a decedent are payable before inheritances, provided that the debt is valid and the creditor doesn't lose his/her rights by failing to file a proper claim against the estate. Heirs only receive what is left after the decedent's debts are paid. Rights under the pre-nup are creditor rights, so to speak, and get paid before distributions to heirs under the will. In that sense the pre-nup takes "precedence" over the will, but it does not actually "negate" the will.



"tomG"	2/4/2004 6:07:17 AM
"geodav" <geodav@bellsouth.net> wrote in message news:4020C53F.3080407@bellsouth.net... So the proceeds of the CD are split between the widow and the deceased children? Is that what the pre-nup agreement says?



Dan Evans	2/4/2004 5:31:36 PM
On Tue, 03 Feb 2004 22:38:15 -0500, geodav <geodav@bellsouth.net> wrote: Does a will negate a pre-nuptial agreement? There is a pre-nuptial agreement saying that what belongs to each before marriage remains theirs. In the will the deceased spouse leaves 1/2 of the premarital assets assets to the widow and 1/2 to the children. There's a CD in the deceased persons name (not joint) that was owned before marriage. The children say that according to the will they should get it all since it is a premarital asset. Which takes precedence the will or the pre-nuptial? Although a prenuptial agreement will often limit the claims of the surviving spouse, it rarely limits the ability of the decedent to do what he wants with his own property. In the situation you describe, it looks like the claims of the surviving spouse spouse are limited to one half of premarital assets (or the surviving spouse is guaranteed at least half of the premarital assets). But that doesn't mean that the decedent can't give the surviving spouse more if he or she wishes. The only way that the children could prevail in a claim against the estate is if the pre-nuptial agreement directed that the children were to get certain assets, and it appeared that the children were intended to be "third party beneficiaries" of the contract. Dan Evans I post information, not advice.

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