To Have and to Hold Until Death do us Part

What are the implications of nuptial agreements in the context of inheritance claims?

John Tunnard explains how the English court treats nuptial agreements and their effect in inheritance disputes.

Current position

English courts are not obliged to give effect to a nuptial agreement in divorce financial remedy proceedings but must give it appropriate weight when exercising discretion regarding the division of assets on divorce.
This modern approach was established in the landmark ruling by the Supreme Court in Radmacher v Granatino [2010] which also concluded that:

• The parties cannot, by agreement, remove the court’s authority to decide financial outcomes (reaffirming the ruling in Hyman v Hyman [1929]); and
• The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless it would be unfair to hold the parties to their agreement.

Circumstances that might make it unfair to hold parties to their agreement will vary from case to case.

However, Radmacher provides the following practical guidance:

Full financial disclosure

In determining whether a nuptial agreement has been entered into freely by each party with full appreciation of its implications, there is no black and white rule for full disclosure or independent legal advice.

Each party must have all the sufficient material information to make an informed decision about whether to agree the terms of the nuptial agreement.

The presence of any of the standard vitiating factors, such as duress, fraud, undue influence or misrepresentation, will negate the effect of the agreement.

This was seen in the case of Entwistle v Helliwell [2025], where failure to disclose substantial assets led to the prenuptial agreement being invalidated.

No undue pressure

Unconscionable conduct such as undue pressure will reduce the weight to be attached to the agreement.

In Entwistle, the agreement was reached on the day of the wedding.
Signing a prenup on the day of the wedding is legally risky and strongly discouraged, as courts may view it as “undue pressure.”

So-called “shotgun” agreements are less likely to be upheld in a divorce than those signed at least 28 days in advance.

In considering whether undue pressure has been applied, the court may take into account:

• A party’s age and maturity.
• Whether a party has been married or been in long-term relationships before may be relevant in showing maturity and life experience.
• Emotional state
• What pressures either of the party were under to agree

Other relevant factors

Other conduct, such as the exploitation of a dominant position to secure an unfair advantage, will reduce or eliminate the weight to be attached to the agreement. It is therefore vital that negotiations are conducted fairly.

The court may also consider a party’s connection to a foreign country. If nuptial agreements are commonplace and legally binding in that jurisdiction, this may support the party’s intention that the agreement should be effective.

Understanding “real need”

“Real need” may be interpreted as the minimum required to keep a spouse from destitution.

In cases where the parties have not provided full disclosure or obtained independent legal advice, it is likely the court will consider that the parties have not freely entered into the nuptial agreement with a full appreciation of its implications.

Only in unusual cases (such as Radmacher), will a court find that, absent independent legal advice and material financial disclosure, a party freely entered into the agreement with a full appreciation of its implications.

In such cases, a party would need to show that the other party has a high degree of financial or legal sophistication to demonstrate the legal rights they are signing away.

Prenuptial agreements and inheritance claims

A pre-nup is very useful where:

• one or both parties have inherited wealth (or expect to).
• on a second marriage, where there are children from the previous marriage and
• there is a wish to ring-fence assets so that they are not available for sharing.

What effect do pre-nups have on death?

It is important to note that nuptial agreements seek to protect assets on relationship breakdown.

If the parties remained happily married at death, the relationship did not break down before death so a pre-nuptial agreement would not generally apply.

If a party dies after divorce proceedings are issued, the parties may wish to try to limit the financial provision the surviving party receives and deal with this within a pre-nuptial agreement.

Claims under the Inheritance Act

If a party dies after divorce proceedings have been issued, it may be important to limit the financial provision available to the surviving party. This should be addressed explicitly within the nuptial agreement.
If an individual dies without making “reasonable financial provision” for a spouse or former spouse (who has not remarried or formed a civil partnership), the spouse or former spouse may apply to the court under the Inheritance Act.

Some prenups include a general clause where the parties agree not to make claims against the deceased’s estate. However, such clauses are not enforceable, as parties cannot remove the court’s jurisdiction under the Inheritance Act.

Although these clauses are unenforceable, they can be brought to the court’s attention and may still influence the outcome.

The court is required to consider all the relevant circumstances of the case, including the parties’ conduct.

The court will want to know why, for example, the applicant’s spouse/civil partner is deviating from the parties’ agreement not to make a claim.

The divorce cross-check

The court will also consider the provision the applicant might reasonably have expected to receive if on the day the deceased died, the marriage, instead of being terminated by death, had been terminated by divorce.

In this situation, the terms of a nuptial agreement will also be an important consideration of the court.

Practical considerations

In practice, couples who remain happily married may not wish to restrict financial provision on death.
For example, a surviving spouse may require long-term care, or a younger widow/widower with children may have sole financial responsibility.

There are few reported cases on the effect of prenups in inheritance claims. One example is Hendry v Hendry [2019], where the Judge permitted a spouse to bring a claim under the Inheritance Act out of time and gave considerable weight to a nuptial agreement.

When proper disclosure is given for a prenup, this can prove useful evidence for distinguishing between matrimonial and non-matrimonial assets.

Matrimonial vs non-matrimonial assets

Matrimonial assets are those acquired during marriage, and non-matrimonial assets are often those acquired pre-marriage.

The recent Supreme Court decision in Standish v Standish [2025] clarified the distinction.

That case involved the transfer of £77 million from a husband to a wife for tax planning purposes (intended to be put into discretionary trusts for their children, which did not happen). The couple divorced and Mrs Standish argued the sums transferred formed part of the matrimonial pot to be shared. The Court of Appeal later disagreed and found the sums to be non-matrimonial.

Implications for inheritance claims

The decision in Standish could have the following effects when considering claims under the Inheritance Act:

• The parties and court need to scrutinise assets to identify whether assets were owned before marriage and whether they remained ring fenced.
• This affects the size of the hypothetical pot of assets deemed available in the divorce and therefore to be considered by a court when undertaking the so-called “divorce cross-check” and assessing the appropriate sum to award a surviving spouse under the Inheritance Act.
•  Now the Supreme Court has confirmed in Standish that non-matrimonial property is not subject to the sharing principle, there could be an increase in needs-based claims in an attempt to gain entitlement to this otherwise excluded property.

The divorce cross-check is only one of the factors to be undertaken when considering all the circumstances of a particular claim under the Inheritance Act.

Therefore, while the court can look at the principles in Standish and, consider prenups following Radmacher, neither are determinative and a court will ultimately make spousal awards under the Inheritance Act that constitute reasonable financial provision in all circumstances.

If you require any further help in this area, please contact an expert member of our private wealth and private wealth disputes team.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.