Can this waiver be e-signed?

Yes. Electronic signatures satisfy ESIGN (15 U.S.C. ch. 96) and UETA where adopted, provided the signature shows intent, consent, attribution, and the record is retained.

Is a notary always required?

Not always. Some states require notarization or witness signatures for enforceability; others do not. Check state-specific rules or consult counsel before execution.

What makes a waiver unenforceable?

Courts may invalidate a waiver for lack of informed consent, inadequate disclosure, coercion, unconscionability, or failure to meet statutory formalities under state law.

Should each party have independent counsel?

While not always mandatory, independent legal advice strengthens enforceability by demonstrating the waiver was entered knowingly and voluntarily.

Can the waiver be revoked later?

Revocation is possible by mutual agreement or as allowed by the waiver terms; unilateral revocation is typically limited and may require formal amendment or replacement of estate documents.

How should signed waivers be stored?

Store originals in a secure location and maintain a certified PDF with audit trail. For healthcare-related disclosures, follow HIPAA retention rules (45 CFR §164.530(j)).

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Antenuptial Agreement Waiver of Right to Elective Share

Antenuptial Agreement Waiver of Right to Elective Share

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Antenuptial Agreement with Waiver of Right to Elective Share

Agreement made this day of , 20, by and between of ,

, and , of .

Whereas, the Parties to this Agreement intend to be married in the near future; and

Whereas, each Party is possessed of certain property and each Party has made full and fair disclosure to the other Party as to the nature and value of his or her property and income; and

Whereas, each Party desires that his or her estate shall pass to his or her respective issue by each Party's former marriage; and

Whereas, each Party is willing that the other shall have full power and authority to dispose of his or her property by Will without the consent or interference of the other, and is willing to waive all right and interest as surviving spouse in the estate of the other;

Now, therefore, in consideration of the mutual covenants and disclosures herein contained, their intended marriage, and intending to be legally bound hereby, the Parties hereto agree as follows:

1. acknowledges that this Agreement is being entered into voluntarily and after a full, satisfactory explanation of all provisions thereof by independent counsel of his own choosing and he acknowledges that he fully understands and consents to all provisions of this Agreement.

2. acknowledges that this Agreement is being entered into voluntarily and after a full, satisfactory explanation of all provisions thereof by independent counsel of her own choosing, and she acknowledges that she fully understands and consents to all provisions of this Agreement.

3. After the solemnization of their prospective marriage, each Party shall separately retain all rights in his or her own property, whether now owned and/or hereafter acquired, irrespective of the source or manner in which such property may be acquired. Each of them shall have the absolute and unrestricted right to dispose of such separate property during his or her lifetime and upon death, free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been solemnized between them. The provisions of this Paragraph shall be fully applicable even though the pertinent laws providing for marital rights may change after the execution of this Agreement with the result that presently existing rights may be reduced, eliminated or expanded and new rights may come into being.

4. With respect to each Party's respective separate properties, which it has been declared and agreed shall be and remain separate, each Party does hereby waive and relinquish any and all rights which he or she might otherwise have thereto or therein as spouse or surviving spouse of the other under present statutes or under statutes hereinafter in effect in any jurisdiction, whether by way of property settlement, equitable distribution, alimony, support, alimony pendente lite, maintenance and care, a distributive share in the event of intestacy, the right of election to take against a will or against an estate, the right to act as administrator or executor, or otherwise, and each of the Parties does hereby release all rights whatsoever which he or she might now have or hereafter otherwise acquire in said property of the other by reason of the contemplated marriage between them.

5. Nothing in this Agreement shall be construed as a waiver or renunciation by either Party of any gift, bequest or devise which may be made by one to the other, nor shall it prevent the creation of joint ownership in property after their marriage if each of them so desire; but this provision shall not be construed as a promise or representation that any such gift, bequest or devise will be made or joint ownership created.

6. Without limiting the generality or the effect of any of the provisions of this Agreement, and in order to facilitate and effectuate, in accordance with the provisions of the Agreement, the transfer of any property now or hereafter owned by either Party, the Parties hereto agree that, at the request of either Party, the other Party will join in any deed or deeds of conveyance and execute such other documents or instruments as may be reasonably required by the other Party to effectuate the terms and provisions of this Agreement, including, without limitation, an acknowledgment that such Party has no interest in such property, real or personal.

7. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, executors, administrators, personal representatives and assigns.

8. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

9. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

10. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

11. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

12. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

13. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

14. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

15. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

17. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both Parties.

WITNESS our signatures as of the day and date first above stated.

By:

Acknowledgements

Notary acknowledgement for future husband:

Notary acknowledgement for future wife:

Notary Name:

Commission Expires:

Seal/Stamp:

What the Antenuptial Agreement Waiver of Right to Elective Share Is

An Antenuptial Agreement Waiver of Right to Elective Share is a written clause or standalone provision in a premarital agreement where one spouse expressly waives statutory rights to an elective share or forced share of the other spouse’s estate. The waiver addresses post-death property division, clarifies property characterization, and helps probate planning by documenting informed consent, consideration, and any agreed exceptions. Enforceability depends on state law, execution formalities, and whether the waiver was knowing, voluntary, and not unconscionable at the time of signing.

Why parties use this waiver

The waiver reduces estate-law uncertainty, preserves testamentary freedom, and memorializes negotiated property allocations between prospective spouses while enabling targeted estate planning under state law.

Who typically prepares and signs this waiver

Use depends on state statutory framework; involve counsel to ensure voluntariness, full disclosure, and compliance with applicable formalities.

High-net-worth individuals seeking to protect premarital assets and inheritance plans.
Spouses in second marriages with blended-family concerns and premarital property agreements.
Parties where one spouse owns a business or real estate requiring clear succession plans.

Representative signer profiles

Family Law Attorney

A counsel drafts clear waiver language, confirms disclosure of assets and liabilities, and advises on local enforceability standards to reduce later probate disputes.

Wealth Owner

A prospective spouse with significant premarital holdings who wants to preserve separate property and specify post-death distributions while documenting informed consent.

Essential data elements to include

Full names: Legal names of both parties

Effective date: MM/DD/YYYY format

Consideration: Statement of consideration

Scope: Specific rights waived

Governing law: Chosen state law

Signatures: Signatures and dates

Key legal risks and consequences of errors

Unenforceability: Waiver may be struck if involuntary

Statutory conflict: State statute may limit waivers

Insufficient disclosure: Can lead to rescission

Improper execution: Missing notarization/witnesses

Ambiguous terms: Creates probate litigation risk

Post-signing changes: Will affect enforceability

Common preparation errors to avoid

Failing to provide full financial disclosure: incomplete schedules of assets and liabilities can render a waiver voidable or lead to later challenges.
Using vague waiver language: broad or ambiguous phrases may be interpreted against the drafter and invite litigation in probate.
Skipping independent counsel advice: courts often view waivers more favorably when each party had the opportunity for independent legal advice.
Ignoring state formalities: missing notarization, required witnesses, or statutory disclaimers can cause rejection during probate or by a court.

Step-by-step: completing the waiver

Follow a clear sequence to prepare a legally sound waiver that demonstrates informed consent and satisfies state formalities.

01

1. Gather documents: Collect asset schedules and supporting statements
02

2. Draft waiver: State the precise elective rights being waived
03

3. Review with counsel: Ensure voluntariness and full disclosure
04

4. Execute formally: Sign before required witnesses and/or notary

How the waiver fits into estate planning workflows

The waiver is often executed alongside a premarital agreement and integrated with wills, trusts, and beneficiary designations to align estate plans.

Draft integration: Coordinate will and trust provisions
Confirm beneficiaries: Align beneficiary designations
Recordkeeping: Store originals with estate files
Periodic review: Revisit after major life events

Core components of a professional waiver

A well-drafted waiver balances clarity with legal protections: it precisely identifies waived statutory rights, documents disclosure and consideration, specifies governing law, and includes execution clauses and integration language with other estate documents.

Waiver language

Explicit statement identifying the elective share or forced-share rights being waived, with clear scope and any exceptions.

Disclosure clause

Detailed schedule of assets and liabilities or an attached exhibit showing what each party disclosed before signing.

Consideration

Statement of consideration or bargained-for exchange that supports enforceability under contract principles.

Integration

Clause describing how the waiver interacts with wills, trusts, beneficiary designations, and future estate documents.

Execution formalities

Notary and witness blocks, acknowledgment language, and any state-required statutory notices or advisories.

Severability

Provision preserving remaining terms if a specific clause is held unenforceable by a court.

Customizing the document workflow

Design an execution workflow that captures consent, authentication, and record retention while meeting state execution requirements.

Field	Configuration
Signer order	Simultaneous or sequential as required
Authentication	Email, SMS code, or higher assurance
Notary step	Plan for in-person or RON if allowed
Retention	Store signed PDF and audit trail

Digital signing and validation considerations

Where a notary or witnesses are required by state law, combine electronic execution with proper notarization (in-person or RON), and retain verification records.

Authentication: Use at least email+access code
Audit trail: Capture IP, timestamp, and actions
Tamper evidence: Produce a certified PDF with audit report

Typical timing and execution deadlines

Timing affects enforceability: complete drafting, disclosure, and execution well before marriage and allow a reasonable period for review by independent counsel.

Pre-marriage execution:

Sign days or weeks before wedding to avoid claims of coercion

Disclosure timing:

Provide full financial disclosure before signing

Counsel review:

Allow time for independent legal advice

Notary/RON scheduling:

Schedule notary or RON session per state rules

Record retention:

Keep originals and copies indefinitely with estate records

Key processing milestones

Track these milestones to create an execution record showing voluntariness and informed consent.

01

1. Initial disclosure

Exchange asset and debt schedules between parties

02

2. Draft review

Review draft with independent counsel if desired

03

3. Final revisions

Incorporate negotiated changes and finalize text

04

4. Formal execution

Sign before required notary and witnesses

eSignature vendor comparison for executing waivers

Compare common eSignature plan attributes relevant to secure execution and notarization support; signNow is listed first for parity in evaluation.

	signNow	DocuSign	Adobe Sign	PandaDoc	HelloSign
Starting Price	$8/user/mo	$15/user/mo	$14/user/mo	$19/user/mo	$15/user/mo
Free Trial	7-day free trial	Varies by plan	Varies by plan	Varies by plan	Varies by plan
Bulk Send	Yes	Yes	Yes	Yes	No
Audit Trail	Yes	Yes	Yes	Yes	Yes
HIPAA Compliant	Yes	Yes	Yes	No	No
Envelope Cap	No cap	100 envelopes/user/year	Varies by plan	Varies by plan	Varies by plan

Frequently asked questions and answers

Answers to common questions about drafting, executing, and enforcing an Antenuptial Agreement Waiver of Right to Elective Share.

Need help? Contact support

Can this waiver be e-signed?
Yes. Electronic signatures satisfy ESIGN (15 U.S.C. ch. 96) and UETA where adopted, provided the signature shows intent, consent, attribution, and the record is retained.
Is a notary always required?
Not always. Some states require notarization or witness signatures for enforceability; others do not. Check state-specific rules or consult counsel before execution.
What makes a waiver unenforceable?
Courts may invalidate a waiver for lack of informed consent, inadequate disclosure, coercion, unconscionability, or failure to meet statutory formalities under state law.
Should each party have independent counsel?
While not always mandatory, independent legal advice strengthens enforceability by demonstrating the waiver was entered knowingly and voluntarily.
Can the waiver be revoked later?
Revocation is possible by mutual agreement or as allowed by the waiver terms; unilateral revocation is typically limited and may require formal amendment or replacement of estate documents.
How should signed waivers be stored?
Store originals in a secure location and maintain a certified PDF with audit trail. For healthcare-related disclosures, follow HIPAA retention rules (45 CFR §164.530(j)).

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