## Facts

- Wallace W. Zimmerman and Sarah L. Zimmerman married in 1954 and later divorced in 1982 after litigation in which marital property was divided, but Wallace’s military retirement pay was not addressed.
- Wallace and Sarah later decided to remarry.
- Before the second marriage, they signed a prenuptial agreement that set rules for property division if the parties divorced or separated: (1) each would keep property owned separately before the remarriage, and (2) property acquired during the second marriage would be settled by agreement or by a court if divorce or separation occurred.
- The prenuptial agreement also provided that Wallace’s military retirement benefits would be treated as a marital asset for the court to consider in a divorce or separation.
- About one year after the remarriage, Wallace and Sarah began living apart under an informal separation; neither sought a divorce, legal separation, or court-ordered property division.
- Wallace executed a will leaving his property to his children, with a qualification concerning Sarah: if Wallace was still married to Sarah at death, she would receive the “legal minimum,” but if they were divorced, Sarah would receive nothing.
- Wallace died while still married to Sarah.
- Sarah sought a statutory elective share from Wallace’s augmented estate under North Dakota probate law.
- The probate court denied Sarah’s elective-share request, ruling she had waived her elective-share rights in the prenuptial agreement, and it also concluded Wallace’s will unambiguously left Sarah nothing.
- Sarah and Maureen K. Zimmerman (a daughter and residuary devisee) appealed; Andrew C. Zimmerman, as personal representative, defended the probate court’s rulings.

## Issues

1. Did the prenuptial agreement, written in terms of divorce or separation, effectively waive Sarah’s statutory right as a surviving spouse to claim an elective share at Wallace’s death?
2. Did the probate court err in construing Wallace’s will as unambiguously devising Sarah nothing in a way that supported denying her elective-share claim?

## Decision

- The North Dakota Supreme Court reversed and remanded.
- The court held Sarah did not effectively waive her statutory elective-share right through the prenuptial agreement.
- The court held the probate court erred in its construction and use of Wallace’s will to reject Sarah’s claim and remanded for determination of Sarah’s elective share of the augmented estate.

## Legal Principles

- A surviving spouse’s elective-share right is statutory and is measured against the augmented estate; it functions as a protection against disinheritance, including through certain nonprobate transfers.
- Waiver of the elective share must satisfy statutory requirements for a valid waiver; an agreement framed around property division upon divorce or separation does not, without clear language directed to rights at death, establish a waiver of the elective share.
- Courts treat waiver of spousal rights as requiring clear proof; uncertain or incomplete language is read against finding that a spouse surrendered statutory protections.
- A decedent’s will cannot by itself defeat the surviving spouse’s statutory option to elect; testamentary language may affect what the spouse takes under the will, but it does not eliminate the statutory election.

## Conclusion

The North Dakota Supreme Court held that the prenuptial agreement addressing only divorce or separation did not constitute an effective waiver of Sarah Zimmerman’s statutory elective share at Wallace Zimmerman’s death, and it rejected the probate court’s will construction to the extent it supported denying the election; the case was reversed and remanded to calculate Sarah’s elective share of the augmented estate.


In the Matter of the Estate of Zimmerman, 579 N.W.2d 591 (1998)