SECTION 2-213. WAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS. uniform probate code

SECTION 2-213. WAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS.  uniform probate code (a) The right of election of a surviving spouse and the rights of the surviving spouse to
homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
(b) A surviving spouse’s waiver is not enforceable if the surviving spouse proves that: (1) he [or she] did not execute the waiver voluntarily; or

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(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he [or she]:
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(B) 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
(C) 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 court 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 of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him [or her] from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
Comment
This section incorporates the standards by which the validity of a premarital agreement is determined under the Uniform Premarital Agreement Act Section 6.
The right to homestead allowance, exempt property and family allowance are conferred by the provisions of Part 4. The right to disclaim interests is recognized by Section 2-1105. The provisions of this section, permitting a spouse or prospective spouse to waive all statutory rights in the other spouse’s property, seem desirable in view of the common desire of parties to second and later marriages to insure that property derived from the prior spouse passes at death to the

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joint children (or descendants) of the prior marriage instead of to the later spouse. The operation of a property settlement in anticipation of separation or divorce as a waiver and renunciation takes care of most situations arising when a spouse dies while a divorce suit is pending.
Effect of Premarital Agreement or Waiver on ERISA Benefits. As amended in 1984 by the Retirement Equity Act, ERISA requires each employee benefit plan subject to its provisions to provide that an election of a waiver shall not take effect unless
(1) the spouse of the participant consents in writing to such election,
(2) such election designates a beneficiary (or form of benefits) which may not be changed without spousal consent (or the consent of the spouse expressly permits designation by the participant without any requirement of further consent by the spouse), and
(3) the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public.
See 29 U.S.C. § 1055(c) (1988); Int. Rev. Code § 417(a).
In Hurwitz v. Sher, 982 F.2d 778 (2d Cir.1992), the court held that a premarital agreement was not an effective waiver of a wife’s claims to spousal death benefits under a qualified profit sharing plan in which the deceased husband was the sole participant. The premarital agreement provided, in part, that “each party hereby waives and releases to the other party and to the other party’s heirs, executor, administrators and assigns any and all rights and causes of action which may arise by reason of the marriage between the parties...with respect to any property, real or personal, tangible or intangible...now owned or hereafter acquired by the other party, as fully as though the parties had never married....” The court held that the premarital agreement was not an effective waiver because it “did not designate a beneficiary and did not acknowledge the effect of the waiver as required by ERISA.” 982 F.2d at 781. Although the district court had held that the premarital agreement was also ineffective because the wife was not married to the participant when she signed the agreement, the Second Circuit “reserve[d] judgment on whether the [premarital] agreement might have operated as an effective waiver if its only deficiency were that it had been entered into before marriage.” Id. at 781 n. 3. The court did, however, quote Treas. Reg. § 1.401(a)-20 (1991), which specifically states that “an agreement entered into prior to marriage does not satisfy the applicable consent requirements....” Id. at 782. Other cases involving the validity of premarital agreements on ERISA benefits include Callahan v. Hutsell, Callahan & Buchino, 813 F.Supp. 541 (W.D. Ky.1992); Zinn v. Donaldson Co., Inc., 799 F.Supp. 69 (D.Minn.1992); Estate of Hopkins, 574 N.E.2d 230 (Ill. App. Ct. 1991); see also Howard v. Branham & Baker Coal Co., 1992 U.S. App. LEXIS 16247 (6th Cir. 1992).
Cross Reference. See also Section 2-208 and Comment.
Historical Note. This comment was revised in 1993 and 2002.
2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer

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provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article 2 (Sections 2-1101 to 2-1117). The statutory references in this Comment to former Section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.