What happens when your spouse dies and you have a prenup?

By November 23, 2021Divorce and Separation

After celebrating your happy engagement, the proposal of getting a prenuptial agreement, also known as a prenup, can feel like a bit of a kick in the teeth. While prenups may not be the most romantic option, they can offer some clarity if you and your partner fall in the worst of times.

For many, however, the possibility of divorce is as far as this conversation will go. But what happens to your assets if your spouse passes away? Will your prenup matter then?

This is a conversation that many of us would prefer to avoid. However, it’s important to know what happens to your prenup if your partner passes. Hopefully, we can put your mind at ease and offer some clarity.

Is a prenup for divorce or death?

The short answer is that prenups can help in both scenarios. Prenuptial agreements are not just for sorting out assets, they can also help protect assets in the event of death. For example, if the will and the prenuptial agreement work in tandem, the prenup can set out whether or not the surviving spouse has the right to claim the estate.

Many of us only begin to contemplate estate planning later on in life. But you don’t have to be up there in years to start thinking about making a will. You can use your prenup to set out what provisions will be provided when you pass. This will help avoid costly litigation if the surviving spouse later decides to claim against the deceased’s estate because they feel under benefited. Furthermore, this can be especially helpful in cases where the predeceased spouse does not wish to leave their entire estate to the surviving spouse.

a couple signing a prenup

No two prenups are the same. Conversations can turn pretty heated if you’re unable to reach a mutually beneficial agreement. That’s why seeking the help of an experienced solicitor can be handy. Both partners should seek separate legal advice to decide on the terms of your prenup so that they are fair and legally valid.

If you have already signed your prenup but the circumstances of your marriage change, you can potentially review and amend it. For example, you may have welcomed a new child or, perhaps, your incomes have significantly changed. Whatever the circumstances, a solicitor can help clear any doubts you may have over your existing agreement.

Does a prenup apply to death?

Although prenuptial agreements are not yet legally binding in UK courts, agreements can still be upheld in court. They must have been drawn up properly, fair, and not discriminatory towards any children.

Part of your prenuptial agreement may state that you cannot make any claims against your spouse’s estate when they pass. Nevertheless, such claims can be accepted under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 particularly if you share children. This is typically the case when the court feels that reasonable financial provision hasn’t been left to support the applicant and/or their dependents.

prenuptial agreement

When an application is made for an order under this act, the court will consider the following:

  • The net size of your spouse’s estate.
  • Any applicant’s current financial resources and needs, and what they will look like in the foreseeable future.
  • The financial resources and needs of the deceased’s beneficiaries, and what they will look like in the foreseeable future.
  • If the deceased has any obligations or responsibilities to any applicants or beneficiaries of their estate.
  • If any applicants or beneficiaries have mental and/or physical disabilities.
  • Whether there are any other relevant matters to take into consideration, such as the conduct of the applicant or any other parties involved.

Is a prenup void after death?

Prenuptial agreements may still have an impact on how assets are divided when a person passes. Nonetheless, prenups should not be used as an estate plan. As we mentioned earlier, prenups should work in conjunction with a Will.

For example, your prenup can determine which of your assets are separate property. A will, on the other hand, will then determine who gets that property when your spouse passes.

Should you draw up a will when getting a prenup?

It might be best for both to have wills drawn up whilst getting your prenup. If either of you already has a will, consider reviewing it before signing your prenup. This will ensure that there are no inconsistencies. Having such conversations with your spouse as early on as possible means no one will be shocked or resentful when the time comes to read the will. Claims against the estate are also less likely to be made.

Emotions can run high when thinking about what life will look like if either you or your spouse pass. But seeking advice from an experienced solicitor can make such discussions easier to manage and less uncomfortable for everyone involved. What’s more, solicitors are well versed in financial matters. They will know which red flags to look out for when writing up a will or prenup. That way, you can rest easy knowing that you will be financially secure if your partner passes before you.

woman signing a prenup

Both of you may also want to consider writing a letter of wishes to explain why you have decided to not leave some or all of your assets to certain loved ones. This letter will accompany your will so consider detailing how you would like your executor and/or trustee to handle your assets as well. That way, everything should be handled according to your wishes when you pass. A solicitor can also help you draft this letter and give you guidance on any issues you may want to consider when it comes to executing your wishes.

Seeking legal advice for prenuptial agreements

Getting married is a big life goal for many people. We know how difficult planning your future together as a couple can be. The last thing you need is the headache of worrying about divorce or death during these otherwise joyous moments. You can put your trust in our experts to make this process as smooth and simple as possible.

We will always do what is right for you and your loved ones, so you don’t have to worry about the future. If you need to speak to one of our experts in family and divorce law, feel free to contact us or fill out our online enquiry form.