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Will my pre-nup affect my Will?

When planning your estate and considering your family’s future once you’re gone, you may wonder how different legal documents interact with each other – especially if you have more than one in place.

One common question we often get is whether a prenuptial agreement (pre-nup) can affect the outcome of a Will.

But, before we get into the relationship between the two, it’s helpful to understand what each document does:

Prenuptial agreement (pre-nup): This is an agreement made between two people before they get married. It outlines the ownership and division of assets in the event of a divorce or separation. It may also cover financial responsibilities during the marriage.
Will: A Will is a legal document that details how you want your assets to be distributed after your death. It can also include wishes regarding the care of any minor children.

While pre-nups and Wills serve different purposes, they can intersect in significant ways, specifically in terms of:

Asset distribution: A pre-nup can specify which assets belong to each spouse and how they should be divided. These provisions can directly influence the assets considered part of your estate. For example, if your pre-nup states that a particular property belongs solely to your spouse, that property may not be included in the assets distributed by your Will.
Spousal claims: In the UK, a surviving spouse has the right to make a claim against the estate if they believe the Will does not provide reasonable financial provision for them. This right exists under the Inheritance (Provision for Family and Dependants) Act 1975. A pre-nup can play a crucial role here, as it outlines the financial expectations and agreements made during the marriage, potentially affecting such claims.
Clarity of intentions: A pre-nup provides a clear record of the couple’s intentions regarding their assets. This can help prevent disputes among beneficiaries by ensuring the Will aligns with the agreements made in the pre-nup. Consistency between these documents can make it easier for your loved ones to understand and honour your wishes.

As you can see, the majority of issues stem from asset and financial issues, but this is not the limit of a pre-nup’s effects of your Will.

You also need to consider the emotional and traumatic affect that these documents can have on your family.

The protracted and extended timeline that is caused by queries in the probate process as a result of pre-nups can drag out your family’s trauma once you’re gone.

Enforceability and challenges

While pre-nups are not automatically legally binding in England and Wales they can carry significant weight if they meet certain criteria.

These criteria include fairness, full disclosure of assets, and both parties entering into the agreement freely.

Similarly, a Will must meet legal standards to be enforceable. A Will must have been:

Signed by the testator with full understanding of their actions
Signed by independent witnesses
Written without undue influence
Disclosed all assets

Even when written correctly according to the law, both documents can be challenged in court under certain circumstances.

For instance, a pre-nup might be contested if it is deemed unfair, and a Will could be challenged based on claims of undue influence or lack of testamentary capacity.

Best practices for harmony between your pre-nup and Will

To ensure your pre-nup and Will work together harmoniously, make sure the terms of your pre-nup and Will are consistent.

If your circumstances or intentions change, update both documents accordingly to avoid conflicts or potential future issues.

You should always seek legal advice when drafting both a pre-nup and a Will too.

A solicitor can help ensure that these documents are enforceable and accurately reflect your wishes as well as avoid contradicting or damaging the legitimacy of one or the other.

If you already have a Will and pre-nup in place, we can read through both documents, check they are legally binding, and make amendments where necessary.

The access to legal knowledge that you get through consulting with a solicitor is unparalleled, especially when compared with DIY or online services.

The only way to make sure your documents work harmoniously together is with the help of a qualified and experienced legal professional.

If you have any questions or need assistance with drafting a pre-nup or a Will, please contact our team.

Rachel Blackburn

Head of Wills, Probate and Older Client Services

I joined Mander Hadley’s Wills, Probate and Older Client Services Team in 2018.I specialise in the preparation of Wills, Probate and estate administration, trusts and trust administration and Lasting Powers of Attorney. I also have experience of care fee planning and appeals of Continuing Health Care decisions.

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