Descent and Distribution

A spouse can waive the right of inheritance to the estate of the other spouse by an antenuptial agreement, which is fairly entered into by both parties with knowledge of all the relevant facts, such as the extent of the spouse's wealth. This is frequently done by couples who remarry late in life, in order to protect the inheritance rights of their children by previous marriages. For example, an affluent couple executes an antenuptial agreement by which they both agree to surrender their inheritance rights in each other's estate. This insures the inheritance rights of their children from prior marriages in their respective estates, without having the estate reduced by the share given to the surviving spouse under the laws of intestacy. To be effective as a bar, the agreement must, in clear terms or by necessary implication, relinquish the surviving spouse's right of inheritance. It must affirmatively appear that neither spouse took advantage of the confidential relation existing between the parties at the time of its execution.

Unless there are statutory provisions to the contrary, a husband or wife can waive, release, or be estopped (prevented) from asserting rights of inheritance in the estate of the other by certain acts or conduct on his or her part during marriage. As a general rule, a spouse can waive his or her rights in the estate of the other by an express postnuptial agreement. Such an agreement is effective only if it manifests a clear and unmistakable intention to trade away such rights, and it must be supported by a valid and valuable consideration, freely and fairly made; be just and equitable in its provisions; and free from FRAUD and deceit. In one case, the assent of a wife to cohabit with her husband only upon his execution of a release of any claim on her property did not constitute sufficient consideration for his agreement, since she was under a legal duty as his wife to live with him.

A separation agreement can provide for the mutual release of the rights of each spouse in the other's property, including an inchoate or potential right of inheritance that will not vest until the death of one spouse. The rights of inheritance in the property of the husband or wife are not to be denied the surviving spouse unless the purpose to exclude him or her is expressed or can be clearly inferred. A PROPERTY SETTLEMENT agreement conditioned upon a DIVORCE cannot bar a spouse's statutory share in the other's estate where the divorce was never finalized because of the death of the spouse. A mere agreement between HUSBAND AND WIFE in contemplation of divorce, by which specific articles of property are to be held by each separately, is no bar to the rights of the surviving spouse, if no divorce has in fact been granted.

The surviving spouse, however, is not prevented from asserting his or her rights in the estate of the deceased spouse by an agreement entered into as a result of ignorance or mistake as to his or her legal rights.