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 waived, wholly or partially, before or after marriage, by a written contract, agreement, or a waiver signed by the party waiving after fair disclosure. Unless it 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 to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other at death and a renunciation by each of all benefits which would otherwise pass to him or her from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
(Acts 1982, No. 82-399, §2-204.)
Notes of Decisions
Cited in
11
cases, 1986–2017 · leading case:
Garrard v. Lang, 489 So. 2d 557 (Ala. 1986).
Garrard v. Lang, 489 So. 2d 557 (Ala. 1986).
· cites it 8× “See Code 1975, § 43-8-72 (1982 repl. vol.); and, generally, 34 C.”
Nelson v. Est. of Nelson, 53 So. 3d 922 (Ala. Civ. App. 2010).
· cites it 6× “In that agreement, the wife also specifically waived certain rights granted to her pursuant to Ala.Code 1975, § 43-8-72, which the parties referred to as “spousal rights.”
Goodwin v. Goodwin, 592 So. 2d 212 (Ala. 1991).
· cites it 8× “The case involves the interpretation of an antenuptial agreement in which the wife, pursuant to Alabama Code 1975, § 43-8-72, waived certain rights (that section allows a surviving spouse to waive homestead rights by written contract), and its effect on the provisions of §…”
Ruzic v. Ruzic, 549 So. 2d 72 (Ala. 1989).
· cites it 2× “A surviving spouse may waive the right of election, homestead allowance, exempt property, and family allowance under Code 1975, § 43-8-72, which provides: "The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property…”
Kristi L. Hood v. Frank L. Hood., 72 So. 3d 666 (Ala. Civ. App. 2011).
“[The wife] has examined the financial statements attached hereto and made a part hereof as Exhibit ‘A’ and has had the opportunity to question and examine all items therein, and acknowledges that fair disclosure has been made by [the husband], as contemplated under the…”
Sol v. Miller, 861 So. 2d 386 (Ala. Civ. App. 2002).
“The supreme court held that § 43-8-72 permits a spouse to waive all statutory rights in the other spouse’s property before or after marriage.”
Kellam v. Dutton, 706 So. 2d 1179 (Ala. 1997).
· cites it 5× “' The answer to this question also requires the resolution of an apparent conflict between § 48-8-90 and § 43-8-72, Code of Alabama 1975. The latter section expressly provides that ‘a waiver of “all rights” (or equivalent language) in the property or estate of a present or…”
Poulin v. Norwood, 143 So. 3d 818 (Ala. Civ. App. 2013).
· cites it 5× “Thus, Poulin’s signature on the real-estate contract, standing alone, did not express a clear intention to waive his right to possess the homestead under § 43-8-114.”
Harris v. Shelton, 837 So. 2d 276 (Ala. Civ. App. 2001).
“See also § 43-8-72, Ala.Code 1975 (assuming that mutual waivers by prospective spouses, of all statutory rights in the estate of the other spouse, constitute consideration in antenuptial and postnup-tial agreements).”
Ivey v. Est. of Ivey, 261 So. 3d 198 (Ala. 2017).
“( § 43-8-72, Ala. Code 1975.) However, the Court finds from the evidence that R.”
Ivey v. Est. of Ivey, 261 So. 3d 198 (Ala. 2017).
“( § 43-8-72, Ala. Code 1975.) However, the Court finds from the evidence that R.”
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