The right of election of a surviving spouse may be waived, wholly or partially, by a written agreement, or by a waiver signed by the surviving spouse. A valid waiver by a surviving spouse of a right of election against a will must meet three requirements:
1. It must be in the form of a written contract or agreement;
2. It must be signed by the party waiving the right; and
3. There must have been fair disclosure.
Utah Certification of Waiver by Attorney for Surviving Spouse
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In Utah, a surviving spouse has a right to a share of the deceased spouse's estate unless the surviving spouse has specifically waived that right. Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share.
If you die without a will in Utah, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married and whether your spouse is also your children's parent.
Unless they waive their rights to your estate through a pre-marital or post-marital agreement, you cannot disinherit your spouse. However, it is possible to disinherit a spouse in Utah, but it requires careful consideration and proper documentation to ensure that your intentions are legally binding.
Surviving Spouse's Elective Share A decedent's surviving spouse may choose to take her statutory elective share in lieu of what she receives under the decedent's estate plan. In very general terms, the elective share is one-third of the augmented estate.
Utah is an "equitable distribution" or "marital property" state as opposed to a "community property" state. This means that the marital property is divided in an "equitable" manner.
The order of succession is as follows: Presence of a spouse and no descendants ? The spouse inherits all of the intestate estates. Presence of a spouse and descendants from the decedent and the spouse ? The spouse inherits all intestate estates.
Survivorship period. To inherit under Utah's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. (Utah Code § 75-2-104.)
