Is a verbal revocation of elective share enough to waive the right over the decedent’s property in Utah?

Full question:

A few weeks before my husband passed, I had an emotional breakdown and ended blurting out that I waive my rights over my husband property. Is the statement sufficient to exclude me from the elective share in my husband’s estate?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Utah

Answer:

No. Mere verbal revocation of elective share is not enough to waive your right over your husband’s property. For a waiver to be legal, it needs to be a written contract or agreement signed by the spouse waiving the right, wholly or partially, before or after the marriage with the deceased spouse.

In Utah, a surviving spouse may elect to take against a will and will be entitled to receive up to 1/3 of the augment estate and any property the spouse receives under the will is charged against the elective share. It must be filed with the courts within 1 year after death or within 6 months after probate proceedings are begun, whichever is later.

For further reference, please see the legal provision per Utah law:

Utah Code Ann. § 75-2-202
(1) The surviving spouse of a decedent who dies domiciled in Utah has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of 1/3 of the augmented estate.
(2) If the sum of the amounts described in Subsection 75-2-209(1), and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under Subsections 75-2-209(2) and (3) is less than $ 75,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $ 75,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in Subsections 75-2-209(2) and (3).
(3) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are charged against, and are not in addition to, the elective-share and supplemental elective-share amounts.
(4) The right, if any, of the surviving spouse of a decedent who dies domiciled outside Utah to take an elective share in property in Utah is governed by the law of the decedent's domicile at death.

Utah Code Ann. § 75-2-203:  Composition of the augmented estate.
Subject to Section 75-2-208 which provides for exclusions, valuation, and overlapping application, the value of the augmented estate, to the extent provided in Sections 75-2-204, 75-2-205, 75-2-206, and 75-2-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.

Utah Code Ann. § 75-2-207
(1) Except to the extent included in the augmented estate under Section 75-2-204 or 75-2-206 or excluded under Section 75-2-208, the value of the augmented estate includes the value of:
     (a) property that was owned by the decedent's surviving spouse at the decedent's death, including:
         (i) the surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;
         (ii) the surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
         (iii) property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal Social Security system; and
     (b) property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under Subsection (1)(a)(i) or (ii), had the spouse been the decedent.
(2) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of Subsections (1)(a)(i) and (ii), the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of Subsection (1)(b), proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under Subsection 75-2-205(1)(d) are not valued as if the spouse were deceased.
(3) The value of property included under this section is reduced by enforceable claims against the surviving spouse.
Utah Code Ann. § 75-2-213:  Waiver of right to elect and of other rights.
(1) 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.
(2) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:
     (a) he did not execute the waiver voluntarily; or
     (b) the waiver was unconscionable when it was executed and, before execution of the waiver, he:
         (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.
(3) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(4) 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 of 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 from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.