In an increasingly complex world, the Financial Post should be the first place you look for answers. Our FP Answers initiative puts readers in the driver’s seat: you submit questions and our reporters find answers not just for you, but for all our readers. Today, we answer a question from Samuel about whether a prenup or a will takes precedence.

Q.

I am in a long-term gay relationship with a wonderful man who is 12 years older than me. We are both worth

more than $2 million individually

. He has listed me as primary beneficiary of the house and much of its contents and his will, and is gifting money and art to his other family members: three nieces. We are

planning to get married

but the prenuptial agreement (prenup) we signed a few years ago stated that we keep our finances separate and that I am not entitled to anything should we part under any circumstances. My question is, does a prenup or a will take precedence at death if they are conflicting?

—Samuel

FP Answers:

Dear Samuel, your question is, “What takes precedence, a prenup or will?” This is complicated. First off, you must understand that both legal documents have legal requirements. They are subject to judicial review to ensure that they satisfy legal obligations and local family or estate laws.

You mentioned you intend to marry. Congratulations! You do not mention if this will be a marriage recognized in jurisdictions where the prenup and last will apply. You should, at a minimum, review the prenup and your will with your own, separate lawyer, prior to your marriage. These documents should refer to each other without conflicting terms.

Domestic contracts

in Ontario, where I work as a lawyer, include domestic, cohabitation or prenuptial agreements. Courts can validate or set aside these agreements. Lack of

independent legal advice

before signing an agreement that is unconscionable, one-sided or confusing can allow courts to invalidate such agreements. Matrimonial homes also receive special treatment in Ontario.

Some prenups confirm terms in the event cohabitation is converted by marriage. If you have contracted to keep your finances separate, then any last will should refer to the prenup and declare that, despite what is required by the prenup, you can benefit from gifts and bequests or transfers of property, both before death and pursuant to any will.

Bear in mind that

wills are not contracts

or binding agreements. However, using a domestic contract in Ontario even after marriage, you can confirm an agreement that neither party will change their wills. Wills can be otherwise changed without notice to you. Wills are not cut in stone so they can be easily changed. That is why you should not bank on what is in a will. Family members or creditors can contest any will,

tying up the estate

and your inheritance in litigation for years.

A marriage, in some jurisdictions can automatically cancel any will. Marriage can also negate provisions in the prenup. Being left

all assets

in a will may entitle you only to the net value of the estate at death after all taxes and other debts are paid. In other words, taxes and debts can wipe out any potential inheritance.

  • FP Answers: Does it make sense to use my home equity for borrowing and investing?
  • FP Answers: What is the best way for Linda to die broke?

Wills are relatively inexpensive to prepare compared with prenuptial agreements. I would encourage you to have your agreement reviewed by your own, separate lawyer to ensure it complies with legal requirements in the jurisdiction where you live and will marry.

Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law. This information does not substitute for legal advice.