A prenuptial agreement is made by a couple before they marry. These agreements can cover a variety of topics, including the division of expenses and income during the marriage, the division of assets and income on divorce, and the division of assets and income upon the death of one spouse. In some instances, these agreements are treated as contracts, but, in other instances, they may be treated as testamentary documents, i.e., like a will.

In a recent Mississippi court case, the surviving spouse asserted that the prenuptial agreement with his late spouse was testamentary in nature. He argued that when his wife later made her will leaving her estate to a trust for her niece and nephew, his wife revoked their prenuptial agreement. As a result, he tried to elect against her will, notwithstanding his obligation in their prenuptial agreement to waive this right.

He also argued that the prenuptial agreement was unconscionable and made without consideration, because his late wife had a much larger estate than he did. The husband then died prior to the resolution of his claims, so his family continued these claims and further asserted that the agreement was forced by the wife’s relatives and was made only eight days before their marriage. When the couple married, both were 63-year -old retired school teachers.

The Court held that the prenuptial agreement was not testamentary in nature. It was a contract about the parties’ economic rights, but it did not involve any transfer of property. Rather, each party retained all of his or her separate property while entering into the prenuptial agreement.

The Court also ruled that the Mississippi statute automatically renouncing a will which makes no provision for the surviving spouse was inapplicable here, due to the husband’s waiver of his right of renunciation in the prenuptial agreement.

Largely on this basis, the Court upheld the validity of the husband’s waiver in the prenuptial agreement. Estate of Bell v. Estate of Bell (Ct App. Miss. 2023)