TITLE 33
Probate practice and procedure

CHAPTER 33-28
Elective Share

SECTION 33-28-3


§ 33-28-3 Waiver of right to elect and of other rights.

(a) The right of election of a surviving spouse and the rights of the surviving spouse to allowances pursuant to chapter 10 of this title may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse. The written contract, agreement, or waiver is enforceable without consideration.

(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that: (1) The surviving spouse did not execute the waiver voluntarily; or (2) The waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse: (i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

(c) An issue of unconscionability of a waiver is for decision by the probate court or other court of competent jurisdiction as a matter of law.

(d) Unless it provides to the contrary, a waiver of "all rights" or equivalent language in the property or estate of a present or prospective spouse or a complete property settlement entered into after, or in anticipation of, separation or divorce is a waiver of all rights to elective share and allowances pursuant to chapter 10 of this title by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to that spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

History of Section.
(P.L. 2014, ch. 260, § 4; P.L. 2014, ch. 312, § 4.)