In re the Estate of Heric

*602OPINION OF THE COURT

Arnold F. Ciaccio, S.

At issue in this proceeding is the enforceability of the surviving spouse’s appropriately filed notice of right of election. The estate seeks a summary dismissal of the notice of the right of election on the basis: (1) that the surviving spouse, one Donald L. Nichols, executed a so-called waiver agreement in the manner of a prenuptial agreement foregoing any right to elect against the decedent’s estate (EPTL 5-1.1-A [e]); and (2) that inasmuch as surviving spouse Donald L. Nichols was a lifetime inmate of the New York State correctional system, his…