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Waiver of Elective Share

Written by on Aug 27, 2019| Posted in: Probate

Waiver of Elective Share in a prenuptial agreement is modifiable only by amending, revoking or abandoning the prenuptial agreement.

According to the Fourth District Court of Appeals, waiver of elective share in a prenuptial agreement can only be invalidated by amending, revoking or abandoning the prenuptial agreement, not by executing a will or trust leaving an amount equivalent to the elective share.

A husband and wife were married in 2011.  Prior to their marriage, they entered into a prenuptial agreement wherein wife waived her right to an elective share in husband’s estate.  The prenuptial agreement did allow them to make gifts to each other by will or codicil without invalidating the prenuptial agreement, to wit:

Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other.  Either of the parties may elect to make a gift to the other by WIll without invalidating this provision and may thereafter change or eliminate the gift by a codicil or another Will without in any way affecting the continue effectiveness of this Agreement.

Finally, the prenuptial agreement required any changes to be in writing and signed by both of them.  In 2013 and 2014, husband executed a trust and an amendment directing the trustee to set aside enough money to satisfy wife’s elective share.  The trust documents were signed only by husband, who died in 2017.  After his death, wife filed a notice of election to take elective share in accordance with the trust agreement.  Husband’s son, the trustee of husband’s trust, objected on the grounds wife waived her right to an elective share in the prenuptial agreement.

According to the Fourth District Court of Appeals,

The trial court found the prenuptial agreement was unambiguous and struck the wife’s election for elective share.  In so ruling, the trial court found that the prenuptial agreement permitted the parties only to give or receive testamentary gifts by will or codicil, that the prenuptial agreement waived the wife’s ability to receive an elective share, and that the prenuptial agreement could be modified only in writing with the signature of both parties.

The appellate court agreed with the trial court and affirmed the decision.  The court went on to opine that the trust agreement could not be construed as a modification of the prenuptial agreement because it was not signed by both husband and wife.  Florida Statute 61.079(6) provides that “after marriage, a [prenuptial] agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties.”  Moreover, the court held that “even if husband gave wife a testamentary gift, the waiver of the elective share would still be effective.  Thus, if the decedent intended to give the wife a testamentary gift, he could have done so by will or codicil without relying on an elective share and specifically the requirements of the elective share statute.”

If the husband had created a will giving 30% of his assets to his wife, then the gift would have been upheld because 1) it was made in a will, as contemplated by the prenuptial agreement, and 2) it did not reference the elective share, which had been waived by the wife.

While the legal analysis is accurate, the result is absurd.  Wilson v Wilson provides a cautionary tale to estate planners and ammunition for anyone seeking to challenge a post-marriage gift providing a spouse with more than what was contemplated by a prenuptial agreement.


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