Premarital Agreement Elective Share

Premarital Agreement and Elective Share: What You Need to Know

A premarital agreement is a contract between two individuals who are planning to get married, outlining the terms and conditions of their financial and property arrangements. This legal document can cover various aspects of their relationship, including the separation of assets and debts, alimony, and inheritance.

However, in some cases, a premarital agreement may conflict with the state`s laws on spousal rights, particularly when it comes to the elective share. In this article, we`ll discuss what the elective share is and how it can affect a prenuptial agreement.

What is the Elective Share?

The elective share is a legal provision that gives a surviving spouse the right to a portion of the estate of the deceased spouse, regardless of what the will or premarital agreement stipulates. In other words, the elective share ensures that a spouse cannot be completely disinherited by their partner.

The exact percentage of the elective share varies from state to state, but it`s usually one-third or one-half of the deceased spouse`s estate. However, some states have minimum and maximum limits, and others may adjust the share based on factors such as the length of the marriage and the number of children.

Why is the Elective Share Important?

The elective share is designed to protect the rights of surviving spouses, especially in situations where the deceased spouse failed to provide for them in their will or premarital agreement. For example, if a spouse writes a will leaving their entire estate to their children from a previous marriage, the surviving spouse may be left without any financial support.

By law, the elective share ensures that the surviving spouse is entitled to a fair share of the estate, regardless of the deceased spouse`s intentions. This provision also prevents individuals from using a premarital agreement to completely cut off their spouse`s inheritance rights, which some people may do to protect their assets or business interests.

How Does the Elective Share Affect a Premarital Agreement?

If you`re planning to draft a premarital agreement, you should be aware of how the elective share can impact your estate planning. While a prenup can generally override or exclude the elective share, some states may have specific requirements that you need to follow.

For example, some states may require the premarital agreement to explicitly waive the spouse`s right to the elective share, or to provide adequate financial support in case of divorce or death. If your prenup fails to comply with these requirements, it may be challenged in court, and the elective share may still apply.

Therefore, it`s crucial to consult with a legal expert who is knowledgeable in the area of prenuptial agreements and estate planning. They can help you draft a premarital agreement that meets your specific needs while complying with the state`s laws on elective share.


A premarital agreement can be a useful tool for couples who want to protect their assets and finances before getting married. However, it`s essential to understand the impact of the elective share on your estate planning and to ensure that your prenup complies with state laws.

By working with an experienced attorney, you can create a premarital agreement that gives you and your spouse peace of mind and protects your interests in case of divorce or death.