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In re Estate of Garbade

Citation. In re Estate of Garbade, 221 A.D.2d 844, 633 N.Y.S.2d 878, 1995)
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Brief Fact Summary.

The respondent and J. Robert Garbade executed a prenuptial agreement where both waived their right to take the elective share of the others estate. When Garbade died, the respondent elected to take her share of Garbade’s estate.

Synopsis of Rule of Law.

A duly executed prenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise. If a surviving spouse waives her right to take her elective share against a will in a prenuptial agreement that spouse may not later take her elective share unless the spouse was influenced by fraud or undue influence in making the prenuptial agreement.


Garbade owned his own construction company and had interests in other enterprises. The respondent brought no assets to the marriage and was unemployed. The respondent and Garbade signed a prenuptial agreement waiving their rights to distribution of community property and their rights to take an elective share of the other’s estate. The respondent received $340,000 when Garbade died but elected to take a share of Garbade’s estate as his surviving spouse. The Surrogate Court granted the petitioner’s request to set aside the respondent’s election. Thereafter, the respondent appealed.


Whether a surviving spouse may take an election of her deceased spouse’s estate if she waived the right in a prenuptial agreement if there and there is no showing that she was influenced by fraud or undue influence?


No. The surviving spouse may not take her elective share because she waived it in a prenuptial agreement and the evidence showed that the surviving spouse was advised to seek independent legal counsel. The fact that the parties went out to lunch before signing the prenuptial agreement do not prove she was unduly influenced of defrauded.


The prenuptial agreement is governed by the laws of contract. The agreement was enforceable because there was no evidence of fraud or undue influence.

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