Updated August 4, 2026. Quick answer: yes, a prenuptial agreement can waive a surviving spouse’s elective share — and under the Uniform Probate Code it takes very little to do it. Undoing one is the hard part. A waiver fails only if the surviving spouse proves it was not signed voluntarily, or that it was unconscionable and they were kept in the dark about what they were giving up. Two separate doors, and the second one has three locks.
How little it takes to waive
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 waiver signed by the surviving spouse.
— Neb. Rev. Stat. §30-2316(a), the Uniform Probate Code as enacted in Nebraska
Note what is not required: no notarisation, no separate lawyers, no consideration named, and it can be signed after the wedding as easily as before. A postnuptial agreement waives just as effectively as a prenuptial one.
The two ways a waiver fails
A surviving spouse’s waiver is not enforceable if the surviving spouse proves that: (1) he or she did not execute the waiver voluntarily; or (2) the waiver was unconscionable when it was executed and, before execution of the waiver, he or she: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
— Neb. Rev. Stat. §30-2316(b)
Read the structure, because almost everyone gets it wrong.
- Route one — involuntary. Stands on its own. Duress, or the classic agreement produced the night before the wedding.
- Route two — unconscionable AND no disclosure. Unconscionability alone is not enough. A one-sided agreement that a fully informed person signed with their eyes open generally holds. And the three disclosure conditions are joined by and, not or — the surviving spouse has to establish all three.
Condition (iii) is the one that quietly defeats most challenges: it is not enough that nobody handed over a schedule of assets. If the spouse reasonably could have had adequate knowledge — they lived in the house, they knew about the business — the door closes. And the burden is on the survivor throughout: the statute says “if the surviving spouse proves”.
An issue of unconscionability of a waiver is for decision by the court as a matter of law.
— Neb. Rev. Stat. §30-2316(c)
Which means it is decided by the judge, not a jury, and it is reviewable as a legal question rather than left to a finder of fact.
“All rights” sweeps wider than people intend
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, divorce, or annulment 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 and a renunciation by each of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
— Neb. Rev. Stat. §30-2316(d)
Three consequences worth spelling out, because a boilerplate phrase does all of this:
- It reaches the homestead allowance, exempt property and family allowance — the small protections a survivor usually relies on immediately, not just the elective share.
- It renounces intestate succession. If the other spouse then dies without a will, the survivor may take nothing.
- It renounces benefits under any will executed before the waiver. A will that generously provided for the spouse is undone by a later property settlement unless the will is redone afterwards.
And a separation or divorce property settlement does this by default, without saying so, unless it provides to the contrary. Couples who reconcile after signing one, and never revisit it, are the people this catches.
If the waiver does not hold, the clock still might beat you
The surviving spouse may elect to take his or her elective share in the augmented estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share … within nine months after the date of death or within six months after the probate of the decedent’s will, whichever time limitation last expires.
— Neb. Rev. Stat. §30-2317(a)
Whichever last expires — so a late-probated will can extend the window, not shorten it. But there is a second deadline underneath the first, and it is the one that costs real money:
Nonprobate transfers described in section 30-2314(a)(1) shall not be included within the augmented estate for the purpose of computing the elective share if the petition is filed later than one year after death.
— Neb. Rev. Stat. §30-2317(a)
On a modern estate the nonprobate transfers are the estate — the transfer-on-death deed, the payable-on-death accounts, the revocable trust. Elect at thirteen months and you may technically still be inside the outer window while the augmented estate has shrunk to whatever happened to pass through probate. One year is the real deadline.
The court may extend the time “for cause shown by the surviving spouse before the time for election has expired” — you must ask while the window is open, not afterwards. And the election can be withdrawn at any point before the court makes a final determination, so filing to protect the date does not commit you.
⚠️ Whether any of this applies to you
Every section quoted above is Nebraska’s enactment of the Uniform Probate Code. The UPC is adopted state by state, with amendments, and a substantial number of states never adopted its elective-share provisions at all — some use a flat fraction, some have no augmented estate concept, and community-property states work on an entirely different footing. Deadlines in particular vary a great deal.
So we are not telling you what your state does. We are showing you the uniform rule so you know what to ask: what does my state require to void a waiver, when does my clock run from, and is there a separate cut-off for nonprobate assets.
Related
The share itself, the schedule and the augmented estate: the spousal elective share calculator — it is not a flat one-third. If there is no will at all: who inherits in a blended family without a will. Providing for a second spouse and children together: protecting children’s inheritance in a blended family. And if a trust is being used to route around this: whether an irrevocable trust can still be changed.
Honest gaps
We have not published the augmented-estate composition rules, the contribution and liability provisions that decide who actually pays the share, the homestead and family allowance amounts, or the rules where the surviving spouse is incapacitated. We have read one state’s statute and do not say which states have adopted these provisions. Nothing here is advice about a particular agreement — voluntariness and unconscionability are fact questions decided on a record this page cannot see, and the free legal-help routes are worth trying before paying anyone.
Statutory text read at the Nebraska Legislature’s own site (Neb. Rev. Stat. §§30-2316 and 30-2317). General information, not legal advice. Elective-share law is state law and the deadlines are short.