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.
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.
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.
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.
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.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.