Does My Premarital Agreement and Waiver From Another State Void My Spouse’s Elective Share?

When folks think about prenups or premarital agreements, alimony and distribution of assets after divorce are often the first thoughts that come to mind.

Many couples today however enter into premarital agreements to disinherit each other upon death of the other spouse—an estate planning tool that is especially relevant when both spouses have children existing from a past marriage.

Sometimes a married couple will execute an estate planning prenup in one state (Florida) and move to another (Iowa) and forget to amend the premarital agreement to comply with the probate laws of their new hometown.

So, why would you disinherit your spouse, and does an old prenup from another state prevent you from claiming your probate rights in the new state you live in?

Read on to find the answers and learn how one spouse’s old premarital agreement prevented her from taking an interest in her late husband’s trust.

Why Spouses Disinherit Each Other

The term “disinherit” doesn’t have to mean retaliating against an heir who mistreated you. You may also disinherit someone kindly and in agreement to manage your estate assets after death.

You may have children from an earlier marriage and want to make sure they are completely taken care of in case something happens to you.


You’re getting married in Iowa, and you sell your million dollar property to move into your fiancée’s house. Your future spouse owns her land, and both you and she have adult children from previous marriages.

If something were to happen to you after you get married and before you and your spouse planned your estates, under intestate succession laws in Iowa, your spouse would take one-half of the profits on the million dollar house you sold, and your children would receive the remaining half.

You would likewise take fifty percent of her estate, and the rest would pass on to her children if your future wife were to pass away before you in the above scenario.  

So would the children of the deceased in the above scenario receive a fair share of the assets under intestate succession laws?

Most likely not! Before marrying each other you and your wife would need to plan your estates and settle upon who gets what to guarantee the kids take an equitable split of the property that will move into probate.

But even executing a will may not be enough. Iowa allows spouses to choose between receiving the provisions in a will or taking an “elective share” of the estate, a statutory rule that could also interfere with your children’s inheritance.

Paring Premarital Agreements and Estate Waivers with Testamentary Documents

When a married couple’s will enters probate in Iowa, the surviving spouse may decide to claim an elective portion of the deceased’s estate instead of what the will has set aside for him or her.

Elective share rules under Iowa Code § 633.238 conveys all exempt personal property to the surviving spouse and 1/3 of all real property and 1/3 of remaining personal property after settling debts. Instead of accepting the real estate, a spouse may subsequently choose to occupy the late spouse’s homestead for life.

This means if one-third of your estate is worth more than the value of the assets you provided for your spouse in your will, the surviving partner may technically take the larger, effectively reducing your intended beneficiaries’ inheritances.

Back to the Above Example…

You made one million dollars after selling your home before getting married. The agreed arrangements in your will conveys $100,000 to your spouse and the remainder to your son from another marriage.

Upon your death, your will enters probate, and your spouse notifies your personal representative that she wants to receive an elective share of your estate instead of taking what you left her. The spouse would accordingly receive $333,333, which would reduce your son’s inheritance to $666,667 from $900,000.

So executing a will alone may not insure your estate will end up in the hands of your heirs in the way you intended.

If however you paired your testamentary documents with a valid premarital agreement and estate waiver, stipulating neither party may challenge the will or elect against its provisions, your beneficiaries’ inheritances would be secure.

Agreement to Waive Estate Rights and Elective Share

The Smith Law Firm frequently includes estate waivers in the premarital agreements of clients getting married for the second time who want the majority of their estates to go to the children of previous marriages and not to the new spouse.

An estate waiver releases or limits spouses from their respective interests in each other’s estate assets and marital property upon death.

The waiver itself is a written contract that is only enforceable when mutually agreed upon and supported by valid consideration. Spouses must likewise receive full disclosures of estate assets before they can willingly surrender their inheritance rights, and they must voluntarily enter into the contract—no duress or fraud.

Back to the Example One More Time… 

You and your spouse properly pair a prenup and an estate waiver contract with your will to make sure your testamentary documents protect your children’s inheritances.

You told your spouse that you took in one million dollars after selling your home before getting married, but you didn’t reveal that you had over $500,000 in cash lying in a bank safe deposit box.

Upon your death, your spouse may enter into will dispute litigation to have the courts dismiss her estate waiver for lack of full disclosure on assets you owned, effectively reinstating her elective share rights so she can attack the cash you had hidden in the bank.

The message here is—always fully disclose your assets before allowing your spouse to waive his or her estate rights voluntarilyno exceptions!

Premarital Agreement Enforcement Across Jurisdictions

Only in rare circumstances will the courts reject a valid premarital agreement or estate rights waiver, even when the married couple executed the contract in another state.

According to Iowa Supreme Court, the lower courts may enforce prenuptial agreements and estate waivers from another state or country under Iowa Code §596.8, as long as the contracts were valid where the parties executed them and the testamentary documents complied with the jurisdiction’s laws and norms at the time of their execution.

This means if you executed a premarital waiver and will, say, in Florida, the Iowa probate courts will almost certainly enforce it, which is what exactly transpired in Hussemann v. Hussemann in 2016.

Real Life Case Study…

Velma Hussemann appealed Iowa District Court Judge Patrick Grady’s ruling granting judgment to her late husband’s sons from a prior marriage, Herbert and Robert Hussemann.

Judge Grady denied Velma’s claim of a spousal elective share and upheld a premarital agreement of which couple properly executed in another state before they set up permanent residence in Iowa.

While living in Florida in 1991, the Hussemanns executed testamentary documents that incorporated a provision defining the “Disposition of Property Upon Death,” as follows, “Wife hereby waives and releases all rights in and claims against the estate of Husband on his death, including elective share.”

Velma and her husband remained in Florida until 2005 when the couple relocated to Iowa and stayed there until the husband’s death in 2012.

During probate, Velma attempted to take a spousal elective share of her late husband’s estate under Iowa Code section 633.238, but her husband’s beneficiaries disputed Velma’s claim, asserting she executed an estate waver in Florida and the contract was binding and enforceable in Iowa.

Judge Grady agreed with the beneficiaries, Velma appealed, and the Iowa Supreme Court affirmed the lower court’s ruling in 2014.

Justice Mansfield held in Hussemann, because neither party challenged the validity of Velma’s contract, the Court’s only focus was whether the lower courts could enforce Velma’s waiver of spousal elective share in Iowa.

According to the complaint, Velma argued enforcement of her Florida waiver “would violate this state’s established public policy against postnuptial agreements waiving a spouse’s elective share.”

However, this Court has established in Cameron v. Hardisty (1987), writes Mansfield, when contracts involve “choice-of-law” controversies, the lower courts in Iowa should follow “Restatement (Second) of Conflict of Laws section 187.”

When applying the principles found in the Restatements, the “contractual duties and rights” executed in one state are enforceable in the state “chosen by the parties” to govern the contract, as long as the documents “complied with the law” when the parties executed them—Velma’s waiver is therefore enforceable in Iowa, according to Court, and Velma should receive nothing from her late husband’s estate.