Waiver of Elective Share

Question 1

Prenup: What is it?

Answer 1

• A waiver of elective share, among other things.

Question 2

Prenup: Ways to convince someone to get one?

Answer 2

1) “It protects both of us”
2) Harp on protecting children (that you had before this new marriage)
3) Blame it on family, a lawyer, or your business
- Always practice the conversation with a client looking to convince someone to sign.

Question 3

Prenup: What are the 4 factors to help waiver of elective share to pass?

Answer 3

1) Voluntary
2) Disclosure
3) No Unconscionability
4) Independent Counsel (not required)

Question 4

Prenup: 4 factors broken down:

Answer 4

1) Both parties should have independent counsel.
2) Disclosure of assets (UPC allows this disclosure to be waived)
3) Waiver can not feel profoundly unfair
4) The court wants the agreement to be voluntary.

Question 5

Prenup: General Rule on disclosure:

Answer 5

• If someone has the opportunity to ask for more information but does not, then they can not claim assets were not fully disclosed.

Question 6

Prenup: Good evidence to support the general rule on disclosure:

Answer 6

Independent counsel present, lists of assets (even with no values listed) present.

Question 7

Inadvertent Disinheritance: Standard Rule:

Answer 7

Give the spouse presumptive intestate share (if they were disinherited and there is know reason present)

Question 8

Inadvertent Disinheritance: Standard Rule: Way to fight:

Answer 8

Evidence is allowed to show spouse intended to disinherit the other spouse.

Question 9

Inadvertent Disinheritance: UPC:

Answer 9

Let the Will remain effective in respect to children and things devised before marriage. (If someone is left out the oh well).