59-6a213. Waiver of right of election and other rights by surviving spouse; requirements; procedures.
59-6a213
59-6a213. Waiver of right of election and otherrights by surviving spouse; requirements; procedures.(a) The right of election of a surviving spouse and the rightsof the surviving spouse to the homestead, the homesteadallowance or the family allowance, orall of them, may be waived, wholly or partially, before orafter marriage, bya written contract, agreement, consent to any instrument, or waiver signed bythe surviving spouse.
(b) A surviving spouse's waiver is not enforceable if the surviving spouseproves that:
(1) The surviving spouse did not execute the waiver voluntarily; or
(2) the waiver was unconscionable when it was executed and, before executionof the waiver, the surviving spouse:
(A) Was not provided a fair and reasonable disclosure of the property orfinancial obligations of the decedent;
(B) did not voluntarily and expressly waive, in writing, any right todisclosure of the property or financial obligations of the decedent beyond thedisclosure provided; and
(C) did not have, or reasonably could not have had, an adequate knowledgeof the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the courtas a matter of law.
(d) Unless it provides to the contrary, a waiver of "all rights," orequivalent language, in the property or estate of a present or prospectivespouse or a complete property settlement entered into after or in anticipationof separation or divorce is a waiver of all rights of elective share benefitsthat would otherwise pass to suchspousefrom the other by intestate succession or by virtue of any will executed beforethe waiver or property settlement. For documents executed on and after July1, 2002, to waive the homestead, the homesteadallowance or the family allowance, or all of them, the language of the documentmust clearly provide that the homestead, the homestead allowance or the familyallowance, or all of them, were understandably and knowledgeably waived by eachspouse, if applicable.
History: L. 1994, ch. 132, § 13;L. 2002, ch. 135, § 3; July 1.