When couples decide to marry, a prenuptial agreement—or “prenup”—is often seen as a sensible way to protect their financial interests. But what happens if one spouse passes away? Can the agreement still hold up, or is there room for it to be challenged?
This question comes up more often than you might think, especially when family members or beneficiaries feel the terms of the prenup are unfair. While these agreements are designed to be binding, they’re not always bulletproof. In Australia, there are certain circumstances where a prenup can, in fact, be contested even after death.
Let’s take a closer look at how that works—and what you can do to ensure your agreement stands the test of time.
Can a Prenuptial Agreement Be Challenged After Death in Australia?
In Australia, prenuptial agreements—formally known as Binding Financial Agreements (BFAs)—generally remain valid after one spouse dies. They are legally enforceable contracts outlining how assets, debts, and property will be divided if the relationship ends.
However, that doesn’t mean they’re untouchable. Courts have the power to set aside or invalidate a prenup if it was signed under questionable circumstances or if it no longer serves its intended purpose. For instance, if one partner was pressured into signing, or if the agreement has become grossly unfair due to major life changes, it may be open to challenge.
If you’re facing such a situation, it’s crucial to seek advice from experienced prenup lawyers in Brisbane who can help assess whether the agreement remains enforceable or if there are grounds to contest it.
Legal Grounds for Challenging a Prenup After Death
While a prenup is designed to provide certainty, the law recognises that not every agreement is made—or maintained—fairly. Here are the main legal reasons a court might set one aside after a spouse’s death.
- Duress or Undue Influence
If one person was coerced or pressured into signing the agreement, it could be deemed invalid. Duress can take many forms—emotional pressure, threats, manipulation, or even subtle coercion from someone in a position of power.
Undue influence often arises when there’s a clear imbalance between the partners, such as one being significantly wealthier, older, or more experienced. If that imbalance was used to push the other into signing, the court may decide the prenup wasn’t a truly voluntary agreement.
- Unconscionable Conduct
A prenup can also be overturned if it’s found to be unconscionable—meaning its terms are so one-sided or unjust that they shock the conscience. This might happen if one spouse exploited the other’s lack of financial understanding, emotional dependence, or language barriers.
Courts take a dim view of situations where one person gains an unreasonable advantage. If the surviving spouse or family members can prove that, the agreement may not hold up.
- Lack of Capacity or Understanding
Both parties must have had the mental capacity to fully understand the nature and consequences of the agreement at the time of signing. If one spouse was suffering from a mental illness, was under the influence of substances, or simply didn’t comprehend the legal implications, the prenup can be invalidated.
This is one reason why having independent legal advice is not just recommended—it’s essential. Without it, a prenup’s validity can easily be questioned later on.
- Major Changes in Circumstances
Life doesn’t always go as planned. If circumstances have changed significantly since the prenup was signed—say, the couple had children, one partner developed a serious illness, or their financial situation changed drastically—the agreement may no longer be fair or practical.
Courts may consider these changes when deciding whether to uphold the prenup after death. The goal is to ensure that the surviving spouse or dependents aren’t left in an unjust situation due to outdated terms.
- Failure to Meet Legal Requirements
In Australia, prenups must comply with strict legal formalities under the Family Law Act 1975. Both parties must receive independent legal advice, fully disclose their financial situation, and properly execute the agreement.
Even a minor oversight—such as missing signatures or inadequate disclosure—can render the entire document unenforceable. That’s why it’s vital to have your prenup drafted and reviewed by reputable family law professionals like Justice Family Lawyers, who specialise in ensuring these agreements meet every legal standard.
Who Has the Right to Challenge a Prenup After Death?
Not everyone can contest a prenuptial agreement after someone passes away. Only certain individuals with a legitimate interest in the deceased’s estate have the legal standing to do so.
Most often, the surviving spouse leads the challenge—especially if the prenup leaves them inadequately provided for. In some cases, the deceased’s children, whether biological or adopted, might also contest the agreement if they believe it unfairly limits their inheritance.
Other beneficiaries named in the will, or those entitled under intestacy laws, may also have grounds to challenge the prenup if it reduces their rightful share of the estate. Each case is unique, and courts will weigh the fairness of the agreement against the current circumstances of those affected.
Ensuring Your Prenup Stays Valid and Enforceable
If you already have a prenuptial agreement—or plan to create one—it’s worth taking proactive steps to make sure it remains enforceable, even after death. After all, the last thing you’d want is for your intentions to be undone by a technicality or a legal challenge.
Seek Independent Legal Advice
Both partners should consult separate lawyers before signing. This ensures each person fully understands the terms and consequences of the agreement. It also provides a paper trail proving that no one was misled, pressured, or taken advantage of.
Be Completely Transparent
A valid prenup relies on full financial disclosure. Both parties must reveal their assets, debts, and income. Failing to do so can easily invalidate the agreement later on. Transparency not only builds trust but also strengthens the legal standing of the document.
Update the Agreement When Life Changes
A prenup isn’t a “set and forget” document. Major life events—marriage, children, inheritances, new properties—can change the entire financial landscape. Regularly reviewing and updating your agreement ensures it stays relevant and fair.
Include Future-Proof Clauses
You can also include clauses that anticipate possible changes, such as future children or major asset acquisitions. This helps prevent disputes later on and demonstrates that both parties considered the long-term implications of their arrangement.
The Bottom Line
So, can a prenup be voided after death? Yes—but only under specific circumstances. Courts don’t take such challenges lightly, and strong evidence is required to prove duress, unfairness, or non-compliance.
For couples who want peace of mind, the best approach is to ensure the agreement is properly drafted, transparent, and periodically updated. Working with experienced legal professionals can make all the difference in protecting your interests and avoiding disputes down the line.
If you’re unsure about the validity of an existing prenup—or you’re preparing to create one—consider consulting Justice Family Lawyers or trusted prenup lawyers in Brisbane. With expert guidance, you can safeguard your assets and make sure your wishes are respected, even after you’re gone.
Author Bio: Jeryl Damluan is a seasoned SEO Specialist and Outreach Specialist at Justice Network. She excels in building authority links and amplifying online presence for law firms and businesses through strategic content creation and digital marketing.