72-2-243. Effect of premarital or marital agreement right to elect and of other rights. (1) In this section, "agreement" includes a subsequent agreement that affirms, modifies, or waives an earlier agreement.

(2) 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 affirmed, modified, or waived wholly or partially, only by a written agreement signed by the surviving spouse, before or after the marriage. The agreement is enforceable without consideration.

(3) An agreement under subsection (2) is not enforceable if the surviving spouse proves that:

(a) the agreement was involuntary or the result of duress;

(b) the surviving spouse did not have access to independent legal representation under subsection (4);

(c) unless the surviving spouse had independent legal representation when the agreement was executed, the agreement did not include an explanation in plain language of the rights under subsection (2) being affirmed, modified, or waived; or

(d) before signing the agreement, the surviving spouse did not receive adequate financial disclosure under subsection (5).

(4) A surviving spouse had access to independent legal representation if:

(a) before signing an agreement, the surviving spouse had a reasonable time to:

(i) decide whether to retain a lawyer to provide independent legal representation; and

(ii) locate a lawyer to provide independent legal representation, obtain the lawyer's advice, and consider the advice provided; and

(b) the other spouse was represented by a lawyer and the surviving spouse had the financial ability to retain a lawyer or the other spouse agreed to pay the reasonable fees and expenses of independent legal representation.

(5) A surviving spouse had adequate financial disclosure under this section if the surviving spouse:

(a) received a reasonably accurate description and good-faith estimate of the value of the property, liabilities, and income of the other spouse;

(b) expressly waived, in a separate signed record, the right to financial disclosure beyond the disclosure provided; or

(c) had adequate knowledge or a reasonable basis for having adequate knowledge of the information described in subsection (5)(a).

(6) Unless an agreement under subsection (2) 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 the spouse in the property of the other spouse and a renunciation of all benefits that would otherwise pass to the renouncing spouse by intestate succession or by virtue of any will executed before the waiver or property settlement.

History: En. Sec. 22, Ch. 313, L. 2019.