An elective share is a term used relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It has also been called a widow's share, statutory share, election against the will, or forced share.
The election rights of a spouse are governed by state laws, which vary by state. Under such laws, the surviving spouse has historically had the option of either:
1. Accepting what was provided to him or her pursuant to the decedents will; or
2. Electing to take a fixed portion of the decedents probate estate property.
The right of election of a surviving spouse may be waived, wholly or partially, by a written agreement, or by a waiver signed by the surviving spouse. A valid waiver by a surviving spouse of a right of election against a will must meet three requirements:
1. It must be in the form of a written contract or agreement;
2. It must be signed by the party waiving the right; and
3. There must have been fair disclosure.
Delaware Waiver of Right to Election by Spouse is a legal document used in Delaware to waive certain rights that a surviving spouse may have under the state's laws of intestacy or probate. This waiver allows the spouse to voluntarily give up their claim to a share of the deceased spouse's estate. In Delaware, there are two main types of Waiver of Right to Election by Spouse: 1. Delaware Statutory Waiver: This type of waiver is governed by the Delaware Code, specifically Title 12, Chapter 15. It provides a legal framework for spouses to waive their right to an elective share or any other inheritance rights under Delaware law. To be valid, the waiver must be signed by the waiving spouse and witnessed by two disinterested individuals. It is important to note that the waiver must be executed before or after the marriage; it cannot be signed during the marriage. 2. Delaware Customized Waiver: Besides the statutory waiver, parties in Delaware can also create a customized waiver agreement tailored to their specific needs and circumstances. This type of waiver allows more flexibility and can address additional issues not covered by the statutory waiver. It is essential to consult with legal professionals to ensure the customized waiver adheres to all legal requirements and includes the necessary provisions to protect both parties' interests. When drafting a Delaware Waiver of Right to Election by Spouse, certain crucial elements should be included: 1. Identification: Begin by providing the legal names and contact information of both spouses involved in the waiver. 2. Intention to Waive: Clearly state that the waiving spouse intends to waive their right to an elective share or any other inheritance rights under Delaware law. 3. Acknowledgment of Understanding: Include a section where the waiving spouse acknowledges that they have read and understood the implications of the waiver, including potential consequences and any alternative arrangements made for their benefit. 4. Voluntaries: Emphasize that the waiver is being executed without any coercion, duress, or undue influence, ensuring that it is done willingly and voluntarily. 5. Witness and Notarization: The waiver should be signed in the presence of two disinterested witnesses who should also sign the document. It is advisable to have the waiver notarized to add an extra layer of authentication. It is crucial to consult with a qualified attorney experienced in Delaware estate planning and probate laws when dealing with Waiver of Right to Election by Spouse. This will help ensure that the waiver complies with all necessary legal requirements, provides adequate protection, and accounts for the unique circumstances of the spouses involved.
