Which document decides which asset
This is the whole subject in one table, and almost every avoidable failure in this area is a case of somebody assuming a different row.
| The asset | What controls it | What the agreement does |
|---|---|---|
| A house held jointly with a right of survivorship | The deed. The survivor takes automatically, before any will is read. | It can record what you both intended. It does not change the deed, and adding a new spouse to a title can quietly undo a plan for children. |
| A house held in one name | The deed, then the will or a recorded transfer-on-death instrument if the state provides one. | It can settle whether the other spouse acquires an interest, and whether contributions to the mortgage are accounted for. |
| Property held in a trust | The trust, if the deed was actually retitled into it. A trust naming a house it never took title to does nothing. | It can commit each of you to funding or not disturbing a trust. It does not fund one. |
| A retirement account through an employer | The plan's own documents and the beneficiary form, with a spouse's written consent required to name anybody else. | It can record the economic intention. It cannot supply the consent, which is given by a spouse after the marriage. |
| An IRA | The beneficiary form with the custodian. | Same. It records intention; the form decides. |
| Life insurance | The beneficiary designation on file with the insurer. | It can require one of you to carry a policy and keep it in force. It does not name the beneficiary. |
| A bank or brokerage account with a payable-on-death designation | The designation. It pays outside the will. | It can settle whose money it was. It does not change who the bank pays. |
| A share in a business | The operating, partnership or buy-sell agreement, which may restrict transfer entirely. | It can settle how the marital side is treated. It cannot override a transfer restriction the business itself imposes. |
| Everything else | The will, and intestacy if there is no will. | It can record a spouse's waiver. It does not say who receives instead. |
Read the middle column twice. Four of those nine assets pass without the will being consulted at all. A couple who negotiate an agreement carefully, write matching wills, and change nothing else have usually left the largest items in the estate exactly where they were.
Source 10Source 11Not sure which of these is yours?
Prefer a guided path?
Answer a few questions and build a personalized Handbook around your situation.
Sahvelo gives information drawn from statutes, agency guidance and official forms. It is not legal advice for your particular situation. Terms & disclaimer.
What a spouse can claim anyway
Leaving a spouse out of a will does not disinherit them. Most states give a surviving spouse a claim against the estate that exists independently of what the will says, and the agreement is where that claim can be given up if the two of you decide it should be.
New York shows both halves clearly. The elective share is measured against more than the probate estate: joint accounts, payable-on-death arrangements, revocable transfers and retirement money are all counted in as testamentary substitutes, so the assets a couple might assume are out of reach are precisely the ones the statute reaches for. And the waiver provision is short. A spouse may waive or release the right during the other's lifetime, in writing, subscribed, and acknowledged the way a deed is acknowledged for recording. The statute then says it works whether signed before or after the marriage, whether signed by one of you or both, and whether or not there was any consideration.
Colorado draws the line somewhere else, and it is the more restrictive rule. There, a waiver of any marital right made on or after 1 July 2014 is unenforceable unless it sits inside a premarital or marital agreement that is enforceable under the state's marital-agreements article. A waiver written into a will, a trust or a letter of intent is not a waiver in Colorado at all. Florida adds a third pattern: marry after making a will and the new spouse takes an intestate share unless the will provided for them, disclosed an intention not to, or an agreement dealt with it, and doing nothing is not one of the exits.
Three states, three different answers to the same question, and none of them is the one a reader would guess from the others. That is the argument for finding out what your own state requires before deciding which document should carry the waiver.
Source 1Source 2Source 4Source 5A second marriage, a blended family, and two sets of children
Remarrying with children already in the picture is where the documents disagree most often, and where the cost of a disagreement is highest, because the people it falls on are the children and the surviving spouse at the same time. The shape is the same whether the children are yours, your new spouse's, or both: stepchildren inherit nothing by default, and your own children stop being the people your plan reaches the moment another document says otherwise.
The intention is usually easy to state. Each of you wants the survivor to be secure, and each of you wants your own children, from a first marriage or a previous relationship, to receive what you brought. The difficulty is that those two intentions are served by different mechanisms, and the ordinary instruments pull against each other. Leaving everything to a spouse and trusting they will pass it on relies on a will they can change afterward. Leaving everything to children leaves a spouse with a statutory claim they can assert against the estate. Holding the house jointly with a new spouse hands it to them outright and removes it from the children entirely, whatever the will says.
What people assume happensWhat actually happens
Each row is a plan that reads correctly and does not work.
My will leaves my share of the house to my childrenIf the deed says joint tenants with right of survivorship, the surviving spouse takes the whole house and the will never reaches it
The deed operates first, and it operates whatever the will says. Of the failures on this list it is the one that is hardest to correct afterward.
My spouse agreed in the prenup not to claim against my estateWhether that works depends on the state's own form of waiver, and in Colorado it must sit inside an enforceable marital agreement to work at all
The agreement is the right instrument. Whether it did the job is a state question.
My children are named on my 401(k), so that is settledOn a typical employer plan a spouse is the default recipient, and naming anyone else needs that spouse's written, witnessed consent given after the marriage
A designation made while single does not survive the marriage on its own.
I will leave everything to my spouse and they will look after my childrenThey can change their will the day after the funeral, and a later remarriage can change it again
This is a trust question rather than a will question, and it is the reason trusts exist in blended families.
The prenup says the family business stays mineIt may settle the marital side and still leave the business governed by its own operating or buy-sell agreement
Two documents, two jobs. Both have to say the same thing.
The instrument that reconciles the two intentions is usually a trust rather than an agreement or a will, because a trust can support a surviving spouse for life and still direct what remains to the children of the first marriage. That is a structuring decision for counsel who knows your state. What this page can say is that a prenup alone, and a will alone, each leave one of the two intentions unprotected.
Source 4Source 11Source 1The retirement account is the hard one
Retirement is where a private agreement meets federal plan rules, and it is the place where a couple is most likely to believe they have done something they have not.
On a typical employer plan the surviving spouse is the default recipient of the death benefit. Naming somebody else requires that spouse to consent in writing, in a form that acknowledges the effect of the election and is witnessed by a plan representative or a notary. Two features of the statute decide what an agreement can do here. The consent is given by the participant's spouse, and before the wedding neither of two engaged people is that. And the plan administrator is separately required to discharge its duties in accordance with the documents and instruments governing the plan, which means the form on file governs and not an agreement the plan has never been shown.
Whatever the agreement says about a retirement account, complete the plan's own spousal consent form after the marriage. Sahvelo has not read the federal regulation that addresses premarital agreements directly, so it makes no claim about what that regulation says. It does not need to: the advice is the same under either answer, and doing it costs one form.
An ordinary IRA sits outside those rules, which is why the same household can get two different answers about two accounts that look identical on a statement. And New York shows the seam from the other side: a federal spousal consent given under the Internal Revenue Code's survivor-benefit sections is deemed to be a waiver for New York elective-share purposes against that benefit. The provision runs one way only. Nothing in it says a New York waiver supplies the federal consent.
Source 11Source 10Source 12Source 9Source 3What to change, and in what order
Some of this can be done before the wedding and some of it cannot. Sorting it by when it is possible is more useful than sorting it by importance, because the items that have to wait are the ones that get forgotten.
Before the wedding
- Agree what the agreement is actually meant to accomplish at death, not only at separation.
- List what each of you owns and owes, with enough detail to be a schedule rather than a summary.
- Read your existing will and trust against the agreement being drafted, and note every place they differ.
- Get a copy of the current recorded deed for any real property, and read the names on it.
- Find every beneficiary designation you have and write down what each one currently says.
- Find any operating, partnership or buy-sell agreement for a business, and read what it says about transfer.
- Confirm with counsel which of these the agreement is capable of carrying in your state.
After the wedding
- Complete the spousal consent on any employer retirement plan where the beneficiary is not to be your spouse. This cannot be done earlier.
- Update the will. A will written before a marriage is the document most likely to produce a claim by operation of law.
- Review or create any trust the plan depends on, particularly where children from an earlier relationship are involved.
- Change beneficiary designations on retirement accounts, investment accounts and payable-on-death arrangements.
- Review life insurance beneficiaries, and check any policy the agreement requires either of you to maintain.
- Decide deliberately how any real property is titled, rather than letting a refinance or a routine transfer decide it.
- Tell the people who need to know where the documents are, including the agreement itself.
Keep a copy of the agreement somewhere both of you can reach it, and somewhere the person who will administer an estate can find it. Several of the provisions that matter most only operate if somebody produces the document, and in at least one state a form asks directly whether such an agreement exists and requires a copy to be attached.
What changes where you live
Four states read at source, on the specific question of what an agreement can do about a spouse's rights at death. They give four different answers.
Where can a spouse's claim on the estate be given up, and what does it take?
The answer in 4 states
-
New York
Expressly permitted, with one formality and a short list of things that do not matter. A spouse may, during the other's lifetime, waive or release the right of election against a particular will or any will or testamentary substitute, and a waiver of all rights in the other's estate operates as a waiver against any of them. To be effective it must be in writing, subscribed by the maker, and acknowledged or proved in the manner New York requires for recording a conveyance of real property. It then works whether executed before or after the marriage, whether unilateral or bilateral, and whether or not there was consideration. The reason this matters more in New York than the words suggest is what the elective share reaches: joint accounts, payable-on-death arrangements, revocable transfers and retirement money are counted in as testamentary substitutes, with a plan carrying the federal survivor rules counted at half its value. New York also treats a federal spousal consent under the Internal Revenue Code's survivor-benefit sections as a waiver against that benefit for its own purposes, which is a one-way rule.Source 2Source 3Source 1 -
Colorado
Permitted in exactly one place and nowhere else. Any affirmation, modification or waiver of a marital right or obligation made on or after 1 July 2014 is unenforceable unless it is contained in a premarital or marital agreement that is enforceable under part 3 of article 2 of title 14. So in Colorado the question is not whether the words of the waiver are right; it is whether the vessel qualifies. A waiver drafted into a will, a revocable trust or a signed letter between spouses is outside the section. Premarital and marital agreements are named together, so an agreement made after the wedding is capable of the same work as one made before. Waivers made before 1 July 2014 are governed by the law in force at the time. What Sahvelo has not read is title 14 itself, so nothing here states what makes such an agreement enforceable in Colorado, which on this rule is the whole question.Source 4 -
Florida
The provision read here is narrower than a general waiver and catches a specific and common situation: a will written before the marriage. Where a person marries after making a will and the spouse survives, the surviving spouse receives the share they would have taken had there been no will. There are three exits and only three: provision was made for the spouse, or waived by the spouse, by prenuptial or postnuptial agreement; the spouse is provided for in the will; or the will discloses an intention not to provide for them. Two consequences follow. Silence is not an exit, so an old will plus a new marriage produces a claim nobody chose. And prenuptial and postnuptial agreements are named together on this provision, so an agreement signed after the wedding can deal with it. Florida's separate elective-share regime, and what Florida requires of a premarital agreement generally, are not read here.Source 5 -
Texas
Texas answers the estate question mostly through property characterization rather than through a waiver of a survivor's claim, which is a different architecture. What each spouse owns at death is decided first: separate property is what was owned before the marriage plus what arrived by gift, devise or descent, everything else acquired during the marriage is community, and anything held is presumed community unless proved otherwise by clear and convincing evidence. A single asset can be part separate and part community, with the split fixed by inception of title rather than by who paid afterward, which is why a house bought before a marriage and paid off with married earnings does not resolve into one category. The estate-side value of an agreement here is therefore largely in fixing characterization and in waiving the reimbursement claims the Family Code otherwise creates between the two marital estates, which a premarital or marital property agreement meeting the requirements of the agreements chapter can do. Texas also allows a subscribed and acknowledged schedule of separate property to be recorded in the county deed records, which is the closest thing in these four states to a way of proving the point years later.Source 6Source 7Source 8
Sahvelo has read all four of these states at their own sources. Another state's rule may differ, and we would rather say that than generalize.
Questions people ask about this
-
Will my prenup override my will?
Neither overrides the other; they answer different questions. The will says who receives. The agreement says what each of you gave up, and in several states it is the instrument capable of waiving a surviving spouse's statutory claim. In Colorado it is the only one: a waiver of a marital right is unenforceable unless it is inside an enforceable premarital or marital agreement. None of that makes an agreement a substitute for a will. If there is no will, intestacy decides the rest of the estate whatever the agreement says.Source 4 -
What happens to the house if I die?
The deed decides, and it decides before the will is read. If the deed creates a joint tenancy with a right of survivorship, or a tenancy by the entireties between spouses, the survivor takes the whole thing automatically and no will reaches it. If the house is in a trust that actually holds title, the trust decides. If the state provides a transfer-on-death instrument and one was recorded before the death, that decides. Only if none of those applies does the will govern. An agreement can record what the two of you intended for the house; it does not change what is recorded at the county. -
How do I make sure my children from my first marriage still inherit?
This is the case where the documents most often disagree, and where an agreement alone is least likely to be enough. The agreement is where a new spouse can give up the statutory claim that would otherwise cut across what you leave your children, and in Colorado it is the only instrument that waiver can live in. But it moves nothing by itself. If the deed says joint tenants with right of survivorship, your spouse takes the house outright and no will reaches it. Accounts pass by beneficiary form. An employer retirement plan pays whoever is on its own paperwork, and a spouse's consent to somebody else can only be given after the marriage. And leaving everything to your spouse in the expectation they will pass it on relies on a will they can change afterward, which is the problem a trust exists to solve. Getting this right means the agreement, the will, the trust, the deed and every designation all saying the same thing.Source 4Source 11Source 10 -
What does my second spouse get if I die first?
More than a will alone decides, and that is the part people are surprised by. Most states give a surviving spouse a claim against the estate that the will cannot remove, and some measure it against assets that never enter probate at all: joint accounts, payable-on-death designations and retirement money. In New York those are counted in as testamentary substitutes, with an employer plan carrying the federal survivor rules counted at half its value. On top of that, an employer retirement plan usually treats a spouse as the default recipient regardless of what any other document says. If the answer you want is different from that, the agreement is one of the instruments that can change it, and it is not the only document that has to change.Source 1Source 3Source 11 -
If we have a prenup, do we still need wills?
Yes, and the agreement makes the wills more important rather than less. An agreement can settle what a spouse will not claim. It does not say who receives instead, it does not name an executor, and it does not name a guardian for children. Without a will, that is decided by intestacy, and intestacy is written for a default family rather than for the arrangement the two of you just negotiated. The version of this that goes wrong is a carefully drafted agreement sitting beside no will at all. -
Could a trust do this instead of a prenup?
They do different work and in a blended family the usual answer is both. A trust can hold property and direct where it goes after supporting a surviving spouse for life, which is the mechanism that reconciles providing for a spouse with preserving something for children from an earlier marriage. What a trust cannot do is waive a right the surviving spouse has by statute, and in Colorado a waiver written into a trust is expressly outside the only place a waiver may live. A trust moves property; an agreement settles claims.Source 4 -
We signed. What do we do now?
Treat the signature as the start of the estate work. Before the wedding, read your existing will and trust against the agreement and note every disagreement, get the recorded deed for any property, and write down what every beneficiary form currently says. After the wedding, complete the spousal consent on any employer retirement plan where the beneficiary is not to be your spouse, update the will, review or create the trust the plan depends on, change the designations, check the life insurance, and decide deliberately how property is titled. The retirement consent is the item that cannot be done in advance, which is why it is the one most often missed. -
My state is not one of the four. What do I ask?
Three questions, and they map onto the three patterns above. What claim does a surviving spouse have against an estate here, and does it reach assets that never enter probate? Where may that claim be given up, and does this state require the waiver to sit inside a marital agreement or allow it elsewhere? And does anything happen automatically to a will that was written before the marriage? Sahvelo asserts nothing about the states it has not read, and a state that is not listed here has not been read.
Official links you'll need
Every link goes directly to the issuing agency or the official tool, and opens in a new tab.
Where this sits in the process
Related
- Prenupswhat marriage changes on its own, and what an agreement can reach
- Postnuptial agreementsthe same coordination problem, after the wedding
- Wills and truststhe document the marriage most often makes out of date
- Creating and funding a trustthe instrument that reconciles a surviving spouse with children from an earlier marriage
- Beneficiary designationsthe forms that pay before any will is read
- How your home passesthe deed, and the four ways a house can pass
- Life insurancea promise to maintain cover, and the designation that actually pays
- Business successionthe agreements that govern a share in a business
- Keeping it currentmarriage, remarriage and a move are all review triggers
- If there is no willwhat happens to everything the agreement did not decide
- Marriage and debtthe other half of what marriage changes without anybody signing
- Property in another statea deed in a second state is decided there, whatever the agreement says
Sources
Four states on the estate-side question, and the federal retirement rules that sit over all of them.
-
N.Y. EPTL §5-1.1-A — the surviving spouse's right of election (opens in a new tab)
New York: the elective share, and the testamentary substitutes counted into it.
-
N.Y. EPTL §5-1.1-A(e) (waiver or release of right of election) (opens in a new tab)
New York: waiver of the right of election, and what does not affect it.
-
New York: retirement counted at half value, and the one-way federal consent rule.
-
C.R.S. §15-11-213 (waiver of right to elect and of other rights) (opens in a new tab)
Colorado: a marital right may be waived only inside an enforceable agreement.
-
Fla. Stat. §732.301 — pretermitted spouse (opens in a new tab)
Florida: marrying after making a will, and the three exits.
-
Texas: separate and community property, and the burden of proof.
-
Texas: inception of title, and the part-separate part-community asset.
-
Texas: an agreement's effect on reimbursement, and the recordable schedule.
-
29 U.S.C. §1144(a) — ERISA preemption of state laws relating to a plan (opens in a new tab)
Federal: ERISA preemption, and why a state rule may not reach a plan.
-
29 U.S.C. §1104(a)(1)(D) — the duty to act in accordance with plan documents (opens in a new tab)
Federal: the fiduciary follows the plan's own documents.
-
29 U.S.C. §1055 — survivor annuities and the spousal consent requirement (opens in a new tab)
Federal: the spouse as default beneficiary, and the witnessed written consent.
-
29 C.F.R. §2510.3-2(d) — individual retirement accounts excluded from Title I (opens in a new tab)
Federal: an IRA is not an ERISA plan.
Sources last reviewed 2026-09-09. Where a source is marked pending re-verification, the page says so wherever the claim appears.