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What happens to an estate if one spouse dies and the other signed a prenup?

Evansville, IN |

I am an only child, and my mother has large financial assets. She got married, but says she had her spouse sign a prenup, she says she did that so the family wealth would not go to his surviving children and would stay in our family should she die before he does. does he have any legal rights should this tragedy really come to pass?

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Attorney answers 4


It really depends what the prenup and her estate planning documents actually say. Absent any planning the surviving spouse would certainly have a claim to at least part of the estate. It is completely possible that what she says is completely true. It is also possible that she is a private person who doesn't want to tell you the details. You can certainly advise her to review her planning but in the end it is her decision alone.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website:


Mr. Zelinger gives good practical advice. In general, the law favors prenups, but a lawyer would need to review it to see if your interests are protected. You really don't have anything to say about it.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


Generally speaking the language of the prenuptial agreement will control. Without reviewing yours, I cannot comment. When I prepare them, I do so with the intent to protect the premarital property in the same manner that if the spouse had not passed. I would suggest taking your agreement to an attorney for a review and explanation of its meaning.

The answers provided are for informational purposes only and shall not be considered legal advice on your specific fact situation. If you would like information specific to your particular fact situation, please feel free to contact me directly.


IF a valid prenuptial was executed, then his rights and obligations are outlined in the pre-nup. Any rights that he had under State law, or under federal pension laws, are modified by the pre-nup. So, that is the document that will answer your questions.

IF there was no pre-nup, or if it was invalid for some reason, then he has statutory rights against 1/4 of your mother's Indiana real estate (presuming they did not have any children together), and 1/2 or more of her other assets. Of course, to the extent they owned any property or accounts as Tenants by the Entireties or Jointly with Rights of Survivorship, then the joint owner receives those assets outright upon her death. Also, if he was designated as a beneficiary on life insurance, annuity or other accounts, then he is entitled to those accounts as she designated.

If you are concerned, perhaps you should ask your mother for a copy of the pre-nup; or at least ask her to identify where that document is for safekeeping. A safe deposit box is certainly secure, but you will not be able to access it upon her death unless you are a co-owner or otherwise have a court order. So, you might ask her to designate you as a co-owner of that safe deposit box, or as the beneficiary of that safe deposit box upon her death (if possible per the institution's protocol).

veRONIca jarnagin, atty, pc 317-253-7664 provides this response as general guidance and not specific legal advice. If you wish to receive specific legal advice for your situation, please call to schedule an appointment.

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