The elective share is a legal right in many jurisdictions that allows a surviving spouse to claim a portion of the deceased spouse’s estate, overriding the terms of the will.

Waiver of Claims

  • Property Rights Upon Death: The agreement stipulates that, except for Marital Property as defined in the agreement, the surviving spouse waives any right to claim a share of any property in the deceased spouse’s estate. This waiver includes renouncing the will or claiming any estate property not explicitly bequeathed to the surviving spouse.

Inclusion of Marital Property

  • Marital Property Entitlement: Despite the general waiver, the surviving spouse retains the right to claim 50% of the property defined as Marital Property of the agreement. This right is enforceable in court, ensuring the surviving spouse can claim their entitled share of Marital Property.

  • Legal Actions: The surviving spouse may initiate legal actions in probate or other relevant courts to enforce their rights to Marital Property, challenging any third parties in possession or control of such property.


  • Operation of Law: The waiver does not affect property that passes to the surviving spouse by operation of law. Such provisions ensure that the surviving spouse still receives rights and assets that are legally protected outside the scope of the will or estate plans.