A spouse’s “elective share” refers to his or her legal right under state law to choose to receive a specific, fixed share of the other spouse’s estate at death in lieu of receiving what was (or wasn’t) left to the surviving spouse under the deceased spouse’s will. Broadly, the concept of the elective share evolved to protect surviving spouses from disinheritance, which was particularly important historically when almost all wives were homemakers without careers.
The elective share in Florida is currently “30 percent of the elective estate.” Determining what property is within the elective estate can be a complicated legal question because the elective estate can be larger than the amount of property passing under a will, reaching some property that normally passes outside probate court.
Elective-share waiver in a prenup
Under Florida law, a prospective spouse can waive his or her right to take the elective share in a premarital agreement, also called a prenuptial or antenuptial agreement. This is more common in a second or subsequent marriage when one spouse wants to preserve his or her assets for his descendants (often kids from a previous marriage) and the waiving spouse is already financially secure. In this situation, both spouses may be comfortable with the waiver.
Professional advice crucial
Still, to some spouses, the elective share can still be important economically when there is a large disparity of wealth between two spouses. In this circumstance, the future spouse being presented with a prenuptial agreement to waive the elective share should get thorough advice from an attorney and consult a financial advisor before entering into such an agreement.
In fact, anyone contemplating a premarital agreement should get the advice and secure the representation of an experienced family lawyer before executing such an agreement. Legal counsel can advise the future spouse about the pros and cons of a proposed agreement, draft or review a proposed agreement, negotiate with the other spouse’s lawyer on behalf of the client, and see that the agreement meets all legal requirements.
If a prenuptial agreement contains a waiver of the elective spousal share, it must be witnessed by two people. While Florida statute does not require this of a premarital agreement normally, Florida probate law does require the witnessing if the premarital agreement is functioning in this way as a probate document impacting property disposal after death.
A premarital agreement can be invalid under certain circumstances such as having been executed under involuntarily or under duress, or if it is the product of fraud, among other things. An invalidated agreement containing an elective-share waiver would likely invalidate that provision also.
There may be a legal issue, however, if a spouse failed to provide reasonable disclosure of his or her property and debts before the agreement was signed. While Florida probate law says that a premarital contract waiving the elective share does not require disclosure of assets to be valid, another Florida statute does say that a premarital agreement in general does require disclosure.
To be invalid because of nondisclosure, however, the premarital agreement must also have been unconscionable (outrageous) when executed. Because of this complexity, an attorney should analyze whether nondisclosure of assets and debts is an issue in this context.