When planning an estate or entering into a prenuptial or postnuptial agreement, the “Waiver of Right of Election” form is a powerful tool that can clarify a spouse’s intentions regarding inheritance rights under New York law.
What Is the Right of Election?
Under New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse is entitled to elect against their deceased spouse’s estate and receive the greater of:
- $50,000, or
- One-third of the net estate (including testamentary substitutes such as joint accounts, revocable trusts, etc.).
This elective share exists even if the decedent’s will leaves the surviving spouse nothing or if assets pass outside the will (e.g., through beneficiary designations). The elective share also exists if there is no Will but assets were transferred prior to Decedent’s death to other family members.
What Is a Waiver of the Right of Election?
A Waiver of Right of Election is a legally binding agreement in which a spouse voluntarily gives up their right to claim an elective share of their partner’s estate. This waiver must be:
- In writing,
- Signed and acknowledged in the same manner as a deed (i.e., before a notary public),
- Made before or during the marriage, and
- Supported by fair disclosure if made after marriage.
These waivers are often found in:
- Prenuptial and postnuptial agreements
- Settlement agreements in divorce or estate litigation
- Estate plans involving trusts or significant non-probate assets
Why Would Someone Sign a Waiver of Right of Election?
There are several reasons a spouse might sign a waiver of the right of election:
- To protect separate assets acquired before the marriage
- As part of a mutual estate planning strategy involving trusts or gifts to other family members
- To resolve contested estate or divorce litigation
- To ensure that children from a prior marriage receive certain assets
Legal Requirements and Enforcement
Courts will generally enforce a waiver if:
- The document is properly executed,
- There was full financial disclosure, and
- The waiver was entered into voluntarily and without undue pressure.
In Matter of Greiff, 92 N.Y.2d 341 (1998), the New York Court of Appeals held that a waiver executed without adequate financial disclosure and without counsel could still be enforceable if the circumstances suggest fairness and voluntary agreement. However, the court emphasized the importance of disclosure and legal counsel.
Practical Considerations in Executing a Waiver of Right of Election
- Counsel for both parties is strongly advised when drafting or executing a waiver.
- Consider recording the waiver with the county clerk, particularly if the document is separate from a marriage agreement.
- If waiving rights to retirement plans, additional ERISA-compliant waivers may be needed.
- In estate litigation, a waiver can be a crucial defense against a surviving spouse’s claim.
Sample Situations Where RK Law Uses These Waivers
At RK Law, we regularly use Waiver of Right of Election forms in the following situations:
- High net-worth prenuptial agreements
- Second marriage estate planning to protect children’s inheritance
- Medicaid planning where the institutionalized spouse’s elective rights would otherwise interfere with eligibility
- Settlement of will contests involving disinherited spouses
What Happens After You Sign? — The Legal Effect of a Waiver of Right of Election
Signing a valid waiver permanently extinguishes the statutory elective-share rights that EPTL § 5-1.1-A would otherwise guarantee to the surviving spouse. In practical terms:
| Effect | What It Means in Real Life | Key Authority |
| No elective-share claim | The surviving spouse may not later file a notice of election; the estate passes exactly as arranged in the will, trust, or beneficiary designations. | Matter of Kessler, 80 A.D.3d 1354 (4th Dep’t 2011) (spouse barred from elective share after executing waiver). |
| Binding on probate & non-probate assets | The waiver bars claims not only against probate assets but also against “testamentary substitutes” (joint accounts, revocable trusts, TOD deeds, etc.). | EPTL § 5-1.1-A(b)(1). |
| Still eligible for gifts expressly left in the will | A waiver does not revoke specific bequests to the spouse—unless the document says so. The spouse can accept gifts but cannot “top up” to one-third. | Matter of Greiff, 92 N.Y.2d 341 (1998). |
| Enforceable in Surrogate’s Court litigation | The waiver is a complete defense to a surviving spouse’s elective-share petition, shortening litigation and protecting other beneficiaries. | SCPA § 1421; Matter of Minervini, 24 Misc.3d 1239(A) (Sur. Ct. Nassau 2009). |
| May affect Medicaid & creditor planning | Because the spouse waives a statutory resource, the waiver can remove an asset the state might otherwise deem “available” for Medicaid or creditor claims. | 18 NYCRR § 360-4.3(b)(2); DSS Transmittal 91 ADM-33. |
| Irrevocable once the other spouse dies | While the spouses can mutually rescind during lifetime, after the first death the waiver is final absent fraud, duress, or lack of capacity. | Matter of Anderson, 80 Misc.2d 462 (Sur. Ct. N.Y. Cty. 1974). |
Bottom line: a properly drafted and executed waiver gives the estate planner certainty that the surviving spouse cannot upset the intended distribution scheme later.
Updated RK Law Checklist for Clients Considering a Waiver
- Exchange full financial disclosure (balance sheets, trust statements)—indispensable for enforceability.
- Separate counsel for each spouse to avoid claims of undue influence.
- Record or store the waiver with the County Clerk or with original estate‐planning documents.
- Coordinate with retirement-plan custodians (ERISA needs a separate spousal‐beneficiary waiver).
- Consider life-insurance equalization so the waiving spouse still receives liquidity without an elective-share right.
How RK Law Can Help
Whether you’re drafting a prenuptial agreement, settling an estate dispute, or protecting children of a prior marriage, RK Law PC guides you through negotiating, executing, and—if necessary—litigating Waiver of Right of Election agreements. Contact us to ensure your waiver achieves its intended effect and survives judicial scrutiny.
When planning an estate or entering into a prenuptial or postnuptial agreement, the “Waiver of Right of Election” form is a powerful tool that can clarify a spouse’s intentions regarding inheritance rights under New York law.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
Visit Regina on LinkedIn
Visit Regina on Facebook
This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.