Legal Question in Wills and Trusts in California

Prenuptial agreements in California are governed by law. They have to be in writing, and signed, and both parties must be given the opportunity to seek independent counsel and a time period of seven (7) days before signing. A prenuptial agreement takes effect upon marriage. It is not clear whether you signed a prenuptial, and got married, or are waiting to get married after signing one, or have not signed one at all.

With respect to a will, you should speak to a competent estate planning attorney. I never recommend the "do it yourself" route with respect to estate planning.

I take it that your prenup contained a provision governing what wills you would make and retain. Without knowing what that provision is, and whether there is grounds to cancel your prenup, there is no way to answer your question.

Once a prenuptial agreement takes effect, as with any legal contract, you can't just "cancel" it. An attempted cancellation would probably be a breach, and your spouse would have potential claims against you. Some of the terms could probably be enforced against you, or you could be liable for money damages.

Wills, on the other hand, are considered "ambulatory" documents, meaning that, in general, they can be amended or withdrawn by the maker at any time while still alive and competent.

There is an exception of sorts, or at least a caveat, with respect to the rule about wills. Sometimes, people make contracts in which they agree to make a will, to include certain provisions in the will, or not to revoke a will. Probate Code section 21700, adopted as of 1/1/2001, says:

"� 21700. Contract to make will or devise; establishment; effect of execution of joint will or mutual wills; applicable law

(a) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or to die intestate, if made after the effective date of this statute, can be established only by one of the following:

(1) Provisions of a will or other instrument stating the material provisions of the contract.

(2) An expressed reference in a will or other instrument to a contract and extrinsic evidence proving the terms of the contract.

(3) A writing signed by the decedent evidencing the contract.

(4) Clear and convincing evidence of an agreement between the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity.

(5) Clear and convincing evidence of an agreement between the decedent and another person for the benefit of the claimant or a promise by the decedent to another person for the benefit of the claimant that is enforceable in equity.

(b) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

(c) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or to die intestate, if made prior to the effective date of this section, shall be construed under the law applicable to the contract prior to the effective date of this section."

So, it is possible to make a legal contract respecting your will, which, if breached, results in possible liability for damages or even specific performance. With such a contract in place, you would have the power to change your will, but not the right to do so.

If you mean that your prenup limited your spouse's claim to your estate and you now want to leave him/her more than provided for previously, yes, you can do that unilaterally and the will must be signed by two witnesses. As Mr. Roach said, it would be best to retain a lawyer to help you with your new estate plan.

True. No prenup can be unilaterally set aside.