The right of election of a surviving spouse may be waived by a written contract signed by the party waiving after fair disclosure. S.C. Code Ann. § 62-2-204 (1987). In the similar context of an antenuptial agreement, considering the confidential relationship between parties to such an agreement, the affirmative duty imposed upon each party to disclose his or her financial status transcends what is normally required for a commercial transaction. Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other.
After the decedent passed away, his surviving spouse claimed an elective share of his estate. Appellants objected, and asserted that S.C. Code Ann. § 62-2-204 (1987) applied to prevent her from claiming the share, because she previously signed a waiver agreement waiving her right to take the elective share. The probate court found for the surviving spouse, and the circuit court affirmed the probate court's decision.
Can the surviving spouse claim her elective share despite the waiver agreement?
The Court held that the waiver agreement the surviving spouse executed at her late husband's request was not effective to prevent her from claiming her elective share; the Court found that the evidence showed he did not make fair disclosure to her of his assets before she signed the agreement. The court noted that the decedent was secretive about his financial affairs, and that the surviving spouse was not allowed to attend the decedent's annual corporate meetings with his children.