The Step-Child, the Will, and the Elective Share
Harold dies domiciled in Arkansas, survived by his second wife, Diane (married 3 years), and his adult daughter, Priya, from his first marriage. Harold's will, executed 6 months before death, leaves the entire $800,000 estate to Priya and names her executor. The will contains a no-contest clause. Diane had signed a prenuptial agreement waiving 'all rights in Harold's estate,' but the agreement was signed 10 days before the wedding and Diane never had independent counsel. Diane now claims an elective share and argues the prenup is unenforceable. Priya threatens to invoke the no-contest clause if Diane challenges the will.
1. Is the prenuptial agreement enforceable against Diane's elective share claim?
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Arkansas law. A prenuptial agreement waiving marital rights is enforceable if it is fair and entered into voluntarily with full disclosure. Arkansas requires that the waiver be knowing and voluntary; lack of independent counsel is a factor but not automatically fatal. Courts examine: (1) whether Diane had time to review (10 days is short but not per se invalid), (2) whether she understood the rights waived, (3) whether there was full financial disclosure, and (4) whether the agreement is unconscionable.
Analysis. The 10-day window and absence of independent counsel weigh against enforceability, especially if Harold did not disclose his assets. However, if the agreement recited disclosure and Diane is educated, a court may uphold it. The burden is on Priya to prove voluntariness. On these facts, the agreement is vulnerable; Diane has a strong argument that the waiver was not knowing.
Elective share. If the prenup fails, Diane may elect against the will. Arkansas's elective share is a portion of the estate (statutory fraction), and the election must be timely filed.
2. Can Priya enforce the no-contest clause against Diane's elective share claim?
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No-contest clauses. Arkansas enforces in terrorem clauses only to the extent they penalize a direct contest of the will's validity. A claim for an elective share is not a contest of the will - it is a statutory right that operates despite the will. Diane is not challenging the will's validity; she is asserting a spousal right. Therefore, the no-contest clause does not apply, and Priya cannot use it to deter the election.
Drafting note. A well-drafted clause might purport to cover elections, but courts generally construe no-contest clauses narrowly and will not enforce them to defeat statutory spousal protections. Diane's election is safe from forfeiture.
3. If Diane's elective share is $200,000, how should Priya's share be adjusted?
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Abatement. The elective share is satisfied from the estate before the residuary beneficiary takes. If the estate is $800,000 and Diane's elective share is $200,000, Priya receives the remaining $600,000 (less administration expenses and debts). The elective share is not a debt of the estate but a distribution that reduces the residuary.
Order of abatement. Arkansas follows statutory abatement: intestate property first, then residuary, then general and specific bequests. Because Priya is the sole residuary beneficiary, her share absorbs the entire reduction. Diane's $200,000 is paid first, and Priya's $800,000 devise is reduced to $600,000. If the will had made specific bequests, those would abate after the residuary.