(a) The right of election of a surviving spouse or reciprocal beneficiary and the rights of the surviving spouse or reciprocal beneficiary 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 or reciprocal beneficiary.
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Terms Used In Hawaii Revised Statutes 560:2-213

  • Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
  • Contract: A legal written agreement that becomes binding when signed.
  • Decedent: A deceased person.
  • Intestate: Dying without leaving a will.
  • Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
(b) A surviving spouse’s or reciprocal beneficiary’s waiver is not enforceable if the surviving spouse or reciprocal beneficiary proves that:

(1) The surviving spouse or reciprocal beneficiary did not execute the waiver voluntarily; or
(2) The waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse or reciprocal beneficiary:

(A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(B) 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
(C) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(d) 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 reciprocal beneficiary 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 or reciprocal beneficiary in the property of the other and a renunciation by each of all benefits that would otherwise pass to the spouse or reciprocal beneficiary from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

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