Waiver of Estate Rights in a Prenuptial Agreement

This Week’s Blog by Andrew M. Eliot

  • In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive a minimum share of your estate (the “elective share”) upon your death
  • The “elective share” in Connecticut is comprised of the lifetime use of one-third of the value of all real and personal property owned by a party at the time of his or her death, after the payment of all debts and charges against that party’s estate
  • A spouse’s right to an “elective share” can be waived in a prenuptial agreement
  • It is not uncommon for parties entering into a prenuptial agreement to waive estate rights. Such waivers are most prevalent in matters where a party has children from a prior relationship, and wishes to ensure that his or her offspring will receive the entirety of that party’s estate upon his or her death

Typically, clients who are interested in entering into a prenuptial agreement are, at a minimum, seeking to protect their assets from a soon-to-be spouse in the event of a divorce.  However, as top divorce and matrimonial attorneys practicing in towns such as Greenwich and Westport will attest, many of our clients, particularly those who have accumulated substantial wealth prior to their anticipated marriage, are also interested in protecting their assets from a soon-to-be spouse in the event of their death. This sentiment most commonly arises in matters where a client is entering into a marriage later in life, and wishes to preserve his or her estate for a child or children from a previous marriage or relationship.  In such a scenario, prenuptial (or postnuptial) agreements can be a critical tool for estate planning purposes, as they are the only means by which a party can ensure that a spouse will not receive a share of his or her estate upon their death.

In order to fully understand this issue, it is first necessary to understand the basics regarding spousal inheritance rights.  In most jurisdictions, including Connecticut, absent a written agreement to the contrary, your spouse will automatically be entitled to receive at least some minimum share of your estate in the event of your death, even if your Last Will and Testament states otherwise. (The amount of this minimum share—commonly referred to as the “elective share”—varies from state to state). Stated differently, absent an agreement in writing to the contrary, you may not, as a matter of law, disinherit your spouse. Instead, upon your death, your spouse will have the option of (a) receiving whatever was bequeathed to him or her in your will; or (b) retaining his or her elective share by “electing against the will.”  In Connecticut, a spouse who chooses to claim the elective share is entitled to the lifetime use of one-third of the value of all real and personal property owned by the other spouse at the time of his or her death, after the payment of all debts and charges against the estate (commonly referred to as a “one-third life estate”).

Notably, however, a spouse’s right to an “elective share” can be waived in a prenuptial agreement, assuming that the agreement is otherwise valid.  It is in this context that a prenuptial agreement can be used as an estate planning tool and, specifically, as a means of protecting assets from a spouse in the event of a divorce.

At Broder & Orland LLC, we have extensive experience negotiating and drafting legally enforceable prenuptial agreements at every level of complexity and sophistication, and can help ensure that your intentions with respect to your spouse’s inheritance rights are specifically addressed in your prenuptial agreement.