Waiver of a Spousal Right of Election

Waiver of a Spousal Right of Election

By: Martin M. Shenkman, CPA, MBA, JD

State law gives a spouse the right to claim a minimum portion of their deceased spouse’s estate. For many couples, a standard part of the prenuptial agreement dance is to agree to forgo (waive) this right. But in order to waive your claim against your spouse’s estate you have to know what you are waiving. That requires disclosure of financial data. New Jersey, for example, requires “full and fair disclosure” NJSA Sec. 37:2-38. Ed told his fiancée Stacey he was worth about $850,000 and Stacey’s lawyer asked for more financial info. Ed told her that’s all the info she’s getting and sign the agreement or the marriage is off. Whoa, I don’t think Host Chris Harrison would have liked this guy on The Bachelor! On later insurance applications Ed indicated he was worth $6M. The law says a pre-nup is not enforceable without full and fair disclosure. An argument that Stacey should be equitably estopped from claiming this was set aside. The lesson is simple, if you want a waiver and prenup to hold, disclose. In Re Estate of Shinn, App. Div. A-3819-O5T5, 6/20/07.

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