Husband's Contract to Waive Rights to an Elective Share of a Spouse's Property

By Beverly Bird

Unless other arrangements are made, if a husband is not mentioned in his wife’s will or is bequeathed only a nominal amount, he can “elect against the will.” He can reject the terms of the document and accept a statutory or elective share of his spouse’s estate instead. The percentage of this share varies according to state law, but is often a third of the overall estate. For various reasons, a husband might be willing to contractually waive his rights to this elective share.

Prenuptial Agreements

Especially when spouses marry late in life, they might prefer the assets they’ve accumulated over their lifetimes pass to their children when they die, not their spouses. For example, a husband might have sufficient property of his own and agree that his wife's assets should go to her children, especially if it’s property she inherited from their father. However, if the wife writes her will accordingly, the will is useless if her husband changes his mind. If he receives nothing in the will, he can choose to claim an elective share, taking bequests intended for his wife’s family. A prenuptial agreement specifically waiving the right to the elective share prevents this from occurring. In most cases, a prenup trumps and supersedes probate laws.

Postnuptial Agreements

A postnuptial agreement -- one written and signed after the date of the marriage -- can also act as a legally binding contract to block a husband from claiming an elective share. This type of contractual agreement also takes legal precedence over probate laws and the contents of a will. However, a husband would retain his right to claim an elective share of his spouse’s estate between the date of the marriage and the time spouses create and sign a postnuptial agreement.

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Options

Some spouses feel uncomfortable with the idea of prenuptial or postnuptial agreements because they imply their marriage will fail. However, prenups and postnups can include anything spouses want them to include. They’re contracts between individuals, and state laws do not force individuals into the terms of a private agreement. An online document preparation service can help spouses create custom-made documents to suit their unique needs. The contract might provide that certain property is immune from elective share laws, but other property is not. It can include only a waiver of elective share rights and nothing else.

Precautions

Prenuptial and postnuptial agreements are not always ironclad if spouses make procedural errors in creating one. It is important to hire an attorney or rely on a trusted online legal document provider to ensure the agreement meets all legal requirements in your state. In most states, spouses cannot use the same attorney, and in some states, the agreements are not valid unless reviewed by two separate attorneys, one for each spouse. Some states require disclosure of the full value of the estate for which a spouse is waiving a right; others do not. If you consult with a professional, you can be sure that a court will uphold your contract if it’s challenged and that it will do what you intend it to do.

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Can a Prenuptial Agreement Be Voided?
 

References

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Can a Future Inheritance Be Put Into a Divorce Agreement?

It takes two to marry but only one to divorce. If your spouse wants out, you save time and tears by accepting the decision and attempting to resolve financial issues amicably. Although a future inheritance probably doesn't constitute marital property in your state, you and your spouse are free to mention it in an equitable divorce agreement.

Can the Provisions in a Will Trump a Premarital Agreement?

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New York State Marital Inheritance Laws

In New York, as elsewhere, marriage gives spouses certain indelible rights when their partner dies. These inheritance laws typically override any estate planning that spouses might make that contradicts the statutes. If you try to disinherit your spouse in New York, it won't work. If you deliberately leave her out of your will, or leave her only a small token amount, New York law will give her a portion of your estate anyway.

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