Spousal Elective Share

The statutory right of a surviving spouse to claim a portion of the estate regardless of what the will says.

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What it means

In almost every state that is not a community property state, a surviving spouse who is left little or nothing may elect against the will and take a share fixed by statute instead. The right exists because the law treats marriage as a partnership that a will cannot unilaterally end at death, and it is the main reason a spouse generally cannot be disinherited by a will alone. The community property states approach the same problem differently, by treating each spouse as already owning half of what was acquired during the marriage.

Three variables decide what the right is worth, and all three are statutory. The fraction differs by state, and in several states it varies with the length of the marriage - a sliding scale intended to distinguish a long partnership from a short one. The base it applies to matters just as much: older statutes applied the fraction to the probate estate alone, which made the right easy to defeat by moving assets into trusts, joint accounts and beneficiary designations, so many states now compute it against an augmented estate that pulls those non-probate transfers back in. And the election must be made within a period set by statute, generally running from death or from the admission of the will to probate; missing it forfeits the right entirely. None of these fractions or periods is stated here, because each is set by the statute of the state where the deceased person lived.

The right can be given up in advance, and frequently is. A valid prenuptial or postnuptial agreement can waive elective share rights, usually only if it meets the state's requirements for such a waiver - commonly written form, voluntariness, and fair disclosure of assets at signing. Related protections often travel alongside it and are separate rights rather than parts of it: a homestead allowance or right to remain in the family home, an exempt property allowance, and a family allowance for support during administration. Some states also protect a spouse or child omitted because the will predates the marriage or birth, which is a distinct doctrine from the elective share.

One point is worth stating plainly because it is the most common misunderstanding: the elective share is a right to claim, not an automatic entitlement. It must be exercised, in the manner and within the time the statute requires, and a surviving spouse who does nothing takes what the will gave them.

Where this comes from

When people hire a lawyer for this

A surviving spouse who has been left out, or left substantially less than expected, should get advice immediately rather than after the estate is administered, because the election period is short, is set by statute, and is not extended by grief or by negotiations with the family. Bring the will, a list of everything the couple owned and how each item was titled, any prenuptial or postnuptial agreement, and details of trusts, joint accounts, life insurance and retirement accounts - those non-probate assets are frequently the whole question, since in an augmented-estate state they may count and in others they may not. Ask three questions: what the share is in this state, what it is computed against, and by what date the election must be filed. Advice is also worth taking before signing any prenuptial or postnuptial agreement waiving these rights, and by an executor facing an election, since it changes how much may safely be distributed and when.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Entries on the same subject:

• Contesting a WillThe narrow legal grounds for setting a will aside - and why "it is not fair" is not one of them.
• Executor (Personal Representative)The person a court authorizes to wind up an estate - a job with real duties, real personal exposure, and a right to be paid.
• Intestate SuccessionThe statutory order in which a person's property passes when they die without a valid will - a default set by the state, not by the family.
• ProbateThe court process that settles a deceased person's estate: validating any will, paying debts, and transferring what remains.
• Small Estate AffidavitThe sworn form that lets a family collect a modest estate without opening a probate case at all.

Other entries in the same area of law, each written from the same primary sources.

• Beneficiary Designation (Payable-on-Death)The single line on an account form that overrides the will - and the commonest reason an estate plan does not do what the family expected.
• Elder LawThe practice area that brings together the legal problems of aging: paying for long-term care, Medicaid eligibility, planning for incapacity, guardianship, and protection from abuse and financial exploitation.
• Estate Planning (What an Estate Plan Is Made Of)The set of documents and arrangements that decide who manages your affairs if you cannot, who inherits what, and how, with the least cost, delay and tax.
• Guardianship and ConservatorshipA court transferring legal decision-making for an adult who cannot make decisions themselves - the most restrictive option, and often not the necessary one.
• Last Will and TestamentThe document that says who inherits what - and, just as importantly, the many things it does not control.
• Power of AttorneyA document authorizing someone to act on another person's behalf in financial or legal matters.
• Revocable Living TrustA container you put property into during life so it can pass at death without a court - useful, oversold, and useless if left unfunded.
• Special Needs TrustA trust that holds money for a person with a disability without disqualifying them from SSI and Medicaid, the difference between first-party and third-party trusts, and the ABLE account alternative.
• Successor Trustee DutiesWhat a person named to take over a living trust after the creator dies or becomes incapacitated must do, the duties the law imposes, and when a trustee can be personally liable.

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