Wills Part X: Waiving the Spousal Elective Share

In Part VIII of this series we covered disinheritance and the ability of a disinherited spouse to elect to receive their statutorily allowed spousal share. The spousal share is a portion of the estate of a decedent that can be taken by a spouse who is either left out of a will or given a nominal devise in the will.

The spousal elective share is not a guarantee however, there are instances in which spouses may agree to waive their reciprocal elective shares. In order to effectively waive a spousal elective share 3 criteria must be met:

1. The agreement must be in writing. Elective share waivers cannot be made by simple oral agreement, there must be a writing so that the agreement is perfectly understood by all parties involved.
2. The agreement must be signed by the party waiving the right to their elective share. This is to help ensure that the spouse making the waiver has read and understands the waiver.
3. There must have been fair financial disclosure. In order to make an informed decision as to what is being waived, a waiving spouse must know the full extent of their partner’s finances before making the decision to waive the right to the elective share.

While waiving the spousal elective share is possible it is difficult to do correctly. Beyond the three requirements, the agreement should be drafted by a competent attorney, it should be clear as to what the spouse is waiving, and the waiving spouse should be informed that they allowed to seek outside council from another attorney if they are having doubts or experiencing confusion regarding the agreement.

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