Maryland statute permits a waiver to the elective share right:
“The right of election of the surviving spouse may be waived before or after marriage by a written contract, agreement, or waiver signed by the party waiving the right of election. Unless it provides to the contrary, a waiver of “all rights” 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 any right to his family allowance as well as to his elective share by each spouse in the property of the spouse…”
Md. Code Ann., Est. & Trusts § 3-205. As with any “statute of frauds” the writing requirement could presumably be sidestepped if there is an agreement to waive the election and there is performance by the one seeking to enforce the oral agreement that is referable to the agreement. SeeUnitas, 314 Md. 689; Mann, 321 Md. 111. As those cases attest, it is difficult to satisfy the referable element necessary to avoid a statute of frauds. One option is for the party wishing to make the elective share to make an admission against interest that there was a contract to waive the spousal election. Such admission against interest must be specific. Golden v. Golden, 116 Md. App. 190 (Md. Ct. Spec. App. 1997), demonstrates that a “what is hers is hers and what is mine is mine” oral agreement, no matter how often repeated, does not rise to the level of establishing an antenuptial agreement and is not binding.
