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California Probate, Will & Trust Lawyer > Blog > Probate > How Can a Prenuptial Agreement Affect Probate?

How Can a Prenuptial Agreement Affect Probate?


Several legal documents can play a crucial role in the probate process. One of those documents is a prenuptial or premarital agreement. Because of the prevalence of premarital agreements in the United States of America, especially among millennials, it is vital that we discuss how a prenup can affect probate. According to one particular CNBC article, because millennials are getting married later in life, meaning they have more assets to protect, more and more of them are choosing to sign prenuptial agreements. Another reason many millennials are signing premarital agreements is that they have a lot of student loan debt.

This article discusses how premarital or prenuptial agreements can impact the probate process.

What Is a Prenuptial or Premarital Agreement?

Before going into how a prenuptial or premarital agreement can affect probate, it is vital that we discuss what a prenuptial or premarital agreement is. A premarital or prenuptial agreement is a contract a couple enters before getting married. A prenuptial or premarital agreement sets forth rules for dividing assets in the event of a separation or divorce. A prenup can also set forth rules for dividing assets in the event of death. In other words, a prenuptial or premarital agreement specifies how a married couple’s property should be handled.

In most states, some requirements must be met for a premarital or prenuptial agreement to be considered valid. The following are some of the requirements a prenup must meet to be considered valid in California;

  • The agreement must be entered voluntarily by both parties
  • Both parties must have the capacity to enter into the agreement. This means they must be at least 18 years and of sound mind
  • Both parties must fully disclose their assets, income, and debts
  • The agreement must be fair

How Can a Prenuptial Agreement Affect Probate?

A prenuptial or premarital agreement can affect the probate process in several ways. For example, a prenup can waive a surviving spouse’s ability to serve as executor or administrator of their spouse’s estate. If there is a clause in a prenuptial agreement that states that a surviving spouse cannot serve as their spouse’s estate administrator or executor, then the court cannot appoint the spouse as executor or administrator.

A prenuptial or premarital agreement can also waive a surviving spouse’s right to inherit from their spouse’s estate. In California, after a spouse dies, the surviving spouse is entitled to half of all assets earned during the marriage, regardless of who acquired the assets. However, if there is a premarital agreement, it can override the default rule. If a prenup says that a surviving spouse is to receive only some of the inheritance, then that is what they will receive. And if the agreement says the spouse will not receive any inheritance, they won’t receive anything.

The reasoning is that because a prenup is a contract created before a spouse dies, the court can use the agreement to distribute property and make other probate-related decisions.

Contact the Probate Guy for Legal Help

To get help with the probate process, contact our skilled and dedicated California probate attorney, Robert L. Cohen – The Probate Guy – today to schedule a telephonic consultation.

Southern California Probate Lawyer Serving Orange, Riverside, Anaheim, Whittier & Beyond.


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I love being a probate attorney. I love helping people through a very difficult time in their lives with the probate process. My practice focuses solely on probate matters. My job is to complete the probate process as efficiently and painlessly for my clients as possible. I have found that paying the upfront costs of probate adds unneeded stress, so I will advance all of the fees and costs for the probate. No money is required to complete the probate. I will be reimbursed at the end of the case when you receive your inheritance. Call me NOW to discuss your case for free.

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