Key Takeaways
- A prenup is designed to designate which property remains separate from marital property, while a will designates what happens to your property upon your death or divorce – agreed in advance of the event.
- When you get a prenup, you will want to get a new will drafted that specifically references the prenup and its conditions to avoid any contradictions or complications for your loved ones after death.
Wording is important in both wills and prenuptial agreements, but that is not their only similarity. Problems with a will or a prenup can arise when they are challenged based on their fairness or legality. Without the proper wording, these documents likely will not be able to accomplish what they were drafted for, but even the best documents can be challenged.
An attorney can help prepare your prenup and your will to help you defend against any challenges while clearly outlining your designations and wishes. A will is an essential aspect of any estate plan, and having a prenup could be necessary before you decide to get married.
At Virginia Beach Law Group, we can help with both.
“This team is amazing! We were delayed in closing due to a last-minute discrepancy. Within 24 hours of being cleared up, Kimberley had us set up and ready to close! They were both outstanding and a real pleasure to work with! We cannot thank them enough for their quick execution and for helping us through the process!” — B. M.
What is a Prenup?
A prenup is a written agreement between two people who are planning to become spouses, drafted and signed before marriage that dictates which of their respective property will remain separate property owned by each individual rather than marital property jointly owned by the spouses, free from the claim of the other in case of divorce. People may want to designate certain assets as separate property to keep control over them completely in the event of a divorce. These agreements also help keep assets in order when one spouse passes away.
Given a prenup’s status as a binding legal document, you will want to have an attorney help draft yours. They will know the specific language necessary to accurately convey your wishes and how you want to designate ownership of particular pieces of property during the marriage and potentially after it.
Which One Takes Priority: A Prenuptial Agreement or a Will?
It is good practice to have a prenup and a will that do not contradict each other, so anyone with a will should rewrite it if they also get a prenup.
If you lack both documents, you typically want to get the prenup done first and follow that with a will that directly references the existence of the prenup. Remember that when you make any considerable changes to one document, you should update the other document for clarity and consistency.
What to Know If You Create a Will After a Prenup
When creating a will after a prenup, you will want something drafted that does not contradict the conditions of the prenup, or if you have since changed your mind, get a new nuptial agreement that you and your spouse agree to. One thing we typically do in our prenup agreements is include a condition that waives Virginia statute allowing the surviving spouse to attack a deceased spouse’s will.
A will specifically outlines what the deceased wants in the event of their death, while a prenup can add detail about where property goes after a spouse dies in addition to what happens in the event of a divorce.
Note: the preferred sequence is preparation of the prenuptial agreement followed by creation of the couple’s wills. We believe it is good practice to insert a provision into a prenup that reserves the right to bequeath the other party anything, if you want to. Then, in a later will, you can grant (or not) property to the other spouse.
Best: have your prenup and your Will (and any other estate planning documents) created at the same firm, so the attorney and staff working on your documents will be familiar with BOTH the prenup and the Will.
Why Clients Choose Virginia Beach Law Group
At Virginia Beach Law Group, we have a long history of service with estate planning, family law, and a wide range of other legal services throughout the Hampton Roads region. With our knowledge and experience of unique Virginia state laws and commitment to premier service, you can approach your legal issues with confidence. Take a closer look at what some of our previous clients had to say about our services.
Testimonials
“I’ve worked with David Johnson on a personal case and have sent clients his way for years. He does amazing work and is a true professional. He is my go-to for all things estate planning related.” — N. K.
“David Johnson very informative also knowledgeable. He gets straight to the point cut the chase all real facts. Upon leaving his office results are fulfilling.” — S. A.
Plan Your Future and Protect Your Assets
At Virginia Beach Law Group, our team can help you protect your future and your assets with prenuptial/postnuptial agreements and wills. Call 757-489-4529 or fill out our online contact form to schedule an initial consultation.
Frequently Asked Questions
In Virginia, inheritance is a matter of statute, and the first question asked is whether or not the deceased had a spouse. If there is a prenup in place, then that question is not as important. Additionally, Virginia law uses the term “bequest” when referring to passing on property by the written instruction we call a Will, while inheritance typically refers to the automatic line of inheritance Virginia statute dictates in the event of an intestate estate. Put simply, anything in a prenup that is listed as separate property will go to the deceased’s heirs rather than their spouse if the will does not specifically state otherwise.
Prenups typically focus on what property is designated as separate property and what is considered marital property. That is generally the extent of it, though there are still plenty of specifics to go into with that concept on its own. Meanwhile, a will covers a much broader range of topics that will be relevant in the event of death. For example, a will is capable of naming an executor or a guardian for any children, while a prenup does not have that capability. Additionally, a will can establish trusts, while a prenup may remove the need to do so altogether.
Imagine a scenario in which two people get married and both have children from previous marriages. In a prenup, you can designate that the married couple’s house will be distributed evenly to all the children once both spouses die. When one dies, the other spouse will get the house for the rest of their life. When both are deceased, half of the house’s value goes to the father’s kids, while the other half goes to the mother’s kids.
In Virginia, the answer to the question “can someone “do” something?” is always “yes.” Anybody can contest a will. You can always file a lawsuit about pretty much anything, including a will. However, being able to do so does not necessarily mean one has a good chance of winning. In Virginia, divorce typically negates a will. If you do get divorced, you should get a new will drafted. With a new will drafted after a divorce (prepared by an experienced attorney), your ex-spouse will have a considerably tough time successfully contesting it.
