A surprising number of marriages end with one spouse trying to disinherit the other. The law of most states protects both husbands and wives from being disinherited.

If a person fails to provide for their surviving spouse or even fails to provide a certain percentage of the estate to their surviving spouse, the surviving spouse can demand and receive an elective or forced share of the estate. This means that the surviving spouse can demand a portion of the estate (normally one-third to one-half) and by law, regardless of what is stated in the will, the surviving spouse will receive that amount.

A spouse remains a spouse and retains elective share rights until the decree of divorce is final, unless the elective share rights are waived in a marital settlement agreement.

While these provisions serve to protect surviving spouses, some couples wish to avoid them. A good example is individuals who each have children from prior relationships marry. Each may have sufficient wealth to be unafraid of being disinherited, and each wants to provide for their own children upon their death. One solution to this problem is for the couple to agree before marriage in a prenuptial agreement that they each waive their rights to receive anything from the other's estate.