The prenup and death: what it can waive, and the one thing it cannot

Most prenups are written for divorce. Death is the other half, and it is governed by a different set of rules. A surviving spouse has a statutory claim against the estate in most states, whatever the will says — a prenup can waive that. A surviving spouse also has federal rights in a 401(k) or pension — a prenup cannot waive those, and no amount of careful drafting changes it.

The short version8 points · tap one to jump to it

1. What a surviving spouse can claim without a will saying so
2. Yes, a prenup can waive it — and the formalities are not what you would guess
3. The one thing a prenup cannot do — If one of you has a 401(k), a pension, or any employer retirement plan governed by federal law, the surviving spouse has rights in it that a prenup cannot touch.
4. IRAs are a different animal — The survivor-annuity rules sit in a part of ERISA that expressly does not apply to individual retirement accounts.
5. The beneficiary form beats the document, every time — This is the failure that costs families the most, and it is entirely preventable.
6. Florida homestead: a separate right, waived separately — Florida’s constitution says the homestead “shall not be subject to devise if the owner is survived by spouse or minor child,” and that a married owner needs the spouse to join in any mortgage, sale or gift.
7. The rights people forget to waive
8. What cannot be waived at all — Social Security survivor benefits.

In this subject 9

What a surviving spouse can claim without a will saying so

In most states, a spouse who is left out of a will can elect against it and take a statutory share instead. The percentage and the pool it applies to vary enormously, and the two versions of the uniform code in circulation produce very different numbers.

Every row read at the statute cited on 21 September 2026. Where a state’s rule turns on the length of the marriage, the scale is shown under the share.

Thirty-two states give a surviving spouse an elective share. Nine are community property states where the survivor already owns half and there is no election. Nine more run schemes of their own — dower, year’s support, renunciation, a claim on “joint industry” property. The percentage matters less than the pool it applies to, which is the column most people never read.

Do not let anyone tell you “the uniform rule is 50%.” The 1990 uniform code (Minnesota) phases a percentage of the whole augmented estate up over fifteen years. The 2008 version (Colorado, Virginia) always says 50%, but only of the marital-property portion, which is itself phased in. Same family of statute, very different arithmetic.

Yes, a prenup can waive it — and the formalities are not what you would guess

Waiver is expressly permitted. The uniform probate code lets a spouse waive the right of election and the homestead allowance, exempt property and family allowance, before or after marriage, in a signed writing. It also says a waiver of “all rights” in a premarital agreement waives the elective share, the allowances and intestate succession together. The premarital acts say the same from the other direction: the permitted subject matter of a prenup expressly includes the disposition of property at death.

Then the states add their own formalities, and they differ in ways that matter:

• Florida wants two witnesses, and no disclosure before the wedding. A waiver must be signed “in the presence of two subscribing witnesses.” Fair disclosure of the estate is required only if the waiver is signed after marriage — “No disclosure shall be required for an agreement, contract, or waiver executed before marriage.” That is the opposite of the usual default.
• New York wants it acknowledged like a deed. A waiver must be “acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property.” A signature alone is not enough.
• Connecticut writes the waiver into the share itself. The statutory share does not apply where, by written contract before or after marriage, a spouse received something intended in place of it.
• Where the 2012 uniform act governs, the agreement fails if a party lacked access to independent legal representation, or — if unrepresented — if the document did not carry a plain-language explanation of the rights being waived, or if financial disclosure was inadequate. Note the word access: separate counsel is not strictly required, a real opportunity to get one is.

Fla. Stat. §732.702 · EPTL §5-1.1-A(e) · Conn. Gen. Stat. §45a-436(f) · UPC §2-213, as enacted at 18-C M.R.S. §2-213 · UPAA §3(a)(3), as enacted at N.C.G.S. §52B-4(a)(3) · UPMAA §9, as enacted at C.R.S. §14-2-309.

The one thing a prenup cannot do

If one of you has a 401(k), a pension, or any employer retirement plan governed by federal law, the surviving spouse has rights in it that a prenup cannot touch. The reason is almost comically simple: the person signing the prenup is not yet a spouse, and only a spouse can give spousal consent.

What federal law does require, under ERISA §205, is a consent that is all four of these: given by an actual spouse, after the marriage; in writing; acknowledging the effect of the waiver and naming the beneficiary or benefit form; and witnessed by a plan representative or a notary public. Courts have thrown out prenup waivers for missing any of it — for failing to name a beneficiary and acknowledge the effect, and in one case for a blank notary line, which handed the entire account to the surviving spouse.

What a prenup can usefully do here is create a contractual obligation to sign the plan’s own consent form once you are married, with a remedy if the spouse refuses. That is a promise between the two of you. It is not a waiver, and the plan administrator is not bound by it.

29 U.S.C. §1055(c)(2) · Hurwitz v. Sher, 982 F.2d 778 (2d Cir. 1992) · Lasche v. George W. Lasche Basic Retirement Plan, 870 F. Supp. 336 (S.D. Fla. 1994), read in the reporter 27 September 2026 · and note the timing trap in IRC §417(a)(6)(B): the election period for the pre-retirement survivor annuity does not open until the plan year the participant turns 35.

IRAs are a different animal

The survivor-annuity rules sit in a part of ERISA that expressly does not apply to individual retirement accounts. No spousal consent requirement, no notary rule, no plan-form waiver. In a common-law state an IRA owner can generally name anyone as beneficiary without a signature from their spouse; what governs instead is the custodial agreement and state law.

In the nine community property states it is the reverse: community property principles can give a spouse an ownership interest in contributions made during the marriage, and custodians commonly ask for spousal consent before a non-spouse is named. This is one of the places where a prenup that opts out of community property does real work — unlike employer plans, where federal law displaces community property claims outright.

29 U.S.C. §1051(6) · Boggs v. Boggs, 520 U.S. 833 (1997) · IRS Pub. 555.

The beneficiary form beats the document, every time

This is the failure that costs families the most, and it is entirely preventable. A life insurance policy, an annuity, a retirement account, a payable-on-death account: each one pays the person named on its own form. The will does not redirect it. Neither, in practice, does the prenup.

The Supreme Court made this explicit for retirement plans: the administrator pays according to the plan documents on file, and an outside waiver — there, a divorce decree — does not change that. The Court chose “the virtues of adhering to an uncomplicated rule” over inquiries into what anyone intended.

Worse, for people who assume divorce cleans this up automatically: many states have a statute that revokes an ex-spouse’s beneficiary designation on divorce. For an employer retirement plan, that statute is preempted and does not apply. An ex-spouse can still be the beneficiary of a 401(k) years after the divorce, in a state whose law says otherwise, because nobody changed the form.

Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009) · Egelhoff v. Egelhoff, 532 U.S. 141 (2001) · Fla. Stat. §732.703, which writes its own federal carve-out into subsection (4).

Florida homestead: a separate right, waived separately

Florida’s constitution says the homestead “shall not be subject to devise if the owner is survived by spouse or minor child,” and that a married owner needs the spouse to join in any mortgage, sale or gift. Those are two different restrictions, and they are waived in different ways.

• A prenup or other written waiver, signed before two subscribing witnesses, can waive the devise restriction along with the elective share, intestate share, homestead, exempt property and family allowance.
• A deed can do it too, using the exact statutory sentence: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”
• That deed waiver expressly does not waive the homestead creditor protections, and it does not remove the requirement that a spouse join in a mortgage, sale or gift.

Fla. Const. art. X, §4(c) · Fla. Stat. §§732.702, 732.7025.

The rights people forget to waive

• The allowances. Homestead allowance, exempt property and family allowance are separate statutory rights. An agreement that waives only “the elective share” leaves them standing.
• Preference in being appointed personal representative. Listed as a separately waivable right, and routinely omitted.
• The stale will. A will signed before the marriage can give a surviving spouse an intestate-share claim as an omitted spouse, unless the will was made in contemplation of the marriage, says it survives one, or the spouse was otherwise provided for. The prenup’s silence does not fix this. Re-execute the will after the wedding.
• Life insurance promised but not secured. “Spouse shall maintain $1,000,000 of coverage” is worth very little once the promisor is dead and the policy has lapsed. Ownership of the policy, an irrevocable designation, or an annual proof-of-coverage covenant are what make it real.

UPC §2-213(1) and §2-301, as enacted at 18-C M.R.S. §2-213 and N.M. Stat. §45-2-301 · Fla. Stat. §732.702(1).

What cannot be waived at all

Social Security survivor benefits. Federal law says the right to any future payment “shall not be transferable or assignable, at law or in equity,” and that no other law modifies it unless it says so expressly. A prenup clause purporting to waive them does nothing.

Social Security Act §207 / 42 U.S.C. §407 · ssa.gov

Keep reading

• What a prenup needs to cover — and what your state already protects, all fifty
• “What am I not thinking about?” — inheritance, the down payment, and money from parents
• Already married, already mixed — what a postnup can still fix
• Prenups and postnups — the four ways one fails
• Estate planning in a stepfamily — what a new spouse and a stepchild get by default
• Why the beneficiary form outranks your will — the form, not the will or the decree, decides who is paid
• Every document to change by hand after a divorce — and the four Supreme Court rulings behind it
• What happens when an ex dies — Social Security, the children’s benefits and an unfinished QDRO

Statutes and cases read at their official or primary sources on 21 September 2026 and linked above. This is general information about how the rules work, not advice about your agreement or your estate. Probate law is state law and it changes. If a rule here has moved, tell us.