Generally, under New York EPTL 5-1.1-A, if a decedent is survived by a spouse, a right of election is given to the surviving spouse to take a share of the decedent's estate “equal to the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate.” Can a prenuptial agreement (“prenup”) waive that right of election? In Matter of Kevelson, 228 A.D.3d 662 (2nd Dep’t June 5, 2024), the Appellate Division held that it can.

In Kevelson, the decedent had three adult children from a previous marriage; his will named them, but not his then-current spouse, as beneficiaries. The disappointed spouse objected to probate of the will and sought to exercise the right of election described above. The children pointed to a prenup between the decedent and the spouse in which they each waived any rights of election against the other’s will. The prenup also required any amendment or waiver thereof to be in an executed writing. Based on these provisions, the children argued that the spouse lacked standing to contest probate of the will. EPTL 5-1.1-A(e) permits waiver of the right of election by an executed writing “acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property.”

Undeterred, the spouse argued that she and the decedent “validly terminated the prenuptial agreement … by purportedly orally agreeing to revoke their rights and obligations thereunder and physically destroying it.” The Surrogate held an evidentiary hearing on the spouse’s motion in limine to exclude admission of the prenup. At the hearing, the children provided an executed original of the prenup, and the spouse was unable to provide any writing pursuant to which it was terminated. The Surrogate thus ruled in favor of the children, denied the motion in limine and admitted the will to probate. The Appellate Division affirmed, and as to the spouse’s argument that there was no consideration for the prenup, noted that EPTL 5-1.1-A(e) permits a waiver of the elective right to be valid “with or without consideration.”

The Takeaway: Entering into a prenup is, of course, a very personal decision between spouses. But Matter of Kevelson counsels that, if there is a prenup pursuant to which the statutory spousal right of election is waived, care should be taken not only to execute it with the formalities of a deed, but to preserve the original safely so that, in the event of an elective share contest, the prenup can be properly proven in court.