Also known as: electing against will · elect against the will · election against the will · elective share · taking against the will
Written by attorneys — see sources below.
A statutory right of a surviving spouse to claim a fractional share of the decedent's augmented estate instead of accepting the provisions of the will. The election operates by overriding inconsistent testamentary gifts while preserving independent entitlements such as homestead and family allowances. The share is calculated against both probate assets and specified nonprobate transfers and is subject to waiver, timeliness rules, and forfeiture for felonious killing.
After Edgar intentionally kills his wife Eva, he petitions the probate court for an elective share of her augmented estate that includes the family home and investment accounts. The court determines that the killing was felonious and intentional. Edgar therefore receives nothing under the election statute, and the estate passes as though he had disclaimed any interest.
Jean Bongaards held substantial property in a revocable trust that passed outside probate to third parties. After her death her surviving spouse filed an election claiming that the trust assets formed part of her estate for purposes of calculating his statutory share. The court examined whether the trust property counted toward the augmented estate and ruled that it did not, so the spouse's election applied only to the probate assets.
In 1978, Josephine D’Amore created the 291 Commonwealth Avenue Trust and conveyed an apartment building located at that address in Boston to the trust, declaring herself sole trustee and sole beneficiary during her lifetime with her daughter Jean Bongaards to succeed her as sole trustee and lifetime beneficiary upon D’Amore’s death. The trust incorporated a schedule of beneficiaries providing D’Amore a life estate, followed by a life estate to Jean, and then remainder interests to D’Amore’s living grandchildren or to the living siblings of Jean as Jean might appoint by written instrument or will, with equal division among living grandchildren if no appointment occurred. In 1979, D’Amore executed a deed purporting to convey the real estate to Jean individually, though D’Amore held the property only as trustee at the time, and D’Amore died later that year. Jean and the plaintiff, who had married in 1965 and resided in one of the apartments, continued living there while Jean managed the property. In 1988, Jean executed a certificate accepting her appointment as trustee, though the document was never recorded. On July 19, 1996, Jean executed a recorded acceptance of her appointment as trustee, an appointment of the remainder interest in favor of her sister Nina Millen, an appointment of Nina Millen as successor trustee, an amendment adding a spendthrift clause, and a confirmatory deed clarifying that title to the property was held by the trust. Jean died ten days later on July 28, 1996, leaving a will that intentionally made no provision for the plaintiff. During her lifetime, Jean also maintained a bank savings account titled in her name as trustee for Nina Millen, retaining the power to withdraw funds at any time, and the account held assets totaling $39,905 at Jean’s death. The plaintiff filed a complaint in the Probate and Family Court seeking a declaration that the trust property and the bank account assets should be included in Jean’s estate for purposes of his elective share under G. L. c. 191, § 15, and the first amended complaint added a claim regarding the bank account. Acting on cross motions for summary judgment, the probate judge rejected both claims and entered judgment dismissing the complaint. The Appeals Court affirmed in part and reversed in part, concluding that the trust property was not included in the elective share estate but that the bank account should have been included. The Supreme Judicial Court granted the plaintiff’s application for further appellate review.
Yes. The allowances are independent entitlements and are not charged against the elective-share amount. A spouse may therefore receive both the fractional share of the augmented estate and the fixed allowances without reduction of one by the other.
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The election is barred. Under the UPC the surviving spouse must file within nine months after the decedent's death. Failure to meet that deadline prevents any claim to the augmented estate.
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A signed written agreement waiving all rights in the other spouse's estate is enforceable without consideration. Lack of full financial disclosure or independent counsel may support an equitable challenge, but the statute focuses on the existence of the signed writing.
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Testate or intestate transfers to the spouse and certain nonprobate transfers are applied against the elective share. Prior cash settlements and buyouts affect the augmented-estate calculation separately under the marital-property inclusion rules.
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Yes. The court determines slayer status in a civil proceeding under the preponderance standard. A final criminal conviction conclusively establishes the bar, but the absence of a conviction on the killing itself requires independent civil proof.
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