Also known as: elective shares · spousal elective share · right of election
Written by attorneys · grounded in primary & secondary sources — see below
A statutory right of a surviving spouse to claim a designated share of the decedent's estate in place of or in addition to any provision made by will or intestate succession. The share is calculated against an augmented estate that includes both probate assets and specified nonprobate transfers. The right may be waived only by a signed written agreement and is forfeited by a spouse who feloniously and intentionally kills the decedent.
Elliot Edmonds and Esme Ellington signed a one-page mid-marriage agreement in which Esme accepted a lump-sum payment in lieu of any claim to Elliot's estate. After Elliot died, Esme petitioned for an elective share. The court enforced the signed writing and denied the petition because the agreement satisfied the statutory requirements for waiver.
Ethan Evans was convicted of feloniously and intentionally killing his wife Emma Erickson. Ethan then sought an elective share of Emma's estate. The court held that Ethan forfeited every benefit under the probate article, including the elective share, and directed that the estate pass as if Ethan had disclaimed his interest.
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Elena Estrada transferred most of her assets into a revocable trust days before her death, retaining full control and naming her children as beneficiaries. Her surviving spouse Eugene Ellsworth elected against the will. The court set aside the transfers as illusory and included the trust assets in the augmented estate subject to the elective share.
Edgewater Capital held assets in two states when its founder died. The surviving spouse filed an elective-share petition in the decedent's domicile. The court applied the law of the domicile to determine the augmented estate and the spouse's share, rejecting an attempt to invoke another state's more restrictive rules.
A surviving spouse may waive the right only by a written agreement signed before or after marriage. The agreement is enforceable without consideration and may affirm, modify, or waive the right along with related allowances.
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No. An individual who feloniously and intentionally kills the decedent forfeits all benefits under the probate article, including the elective share. The estate then passes as if the killer had disclaimed the interest.
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Yes. The family allowance, homestead allowance, and exempt property are not charged against the elective share and may be received in addition to it unless the governing instrument provides otherwise.
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The share is applied to the augmented estate, which includes the probate estate plus specified nonprobate transfers made during marriage that benefit persons other than the surviving spouse.
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…of her rights against the defendant. [^maj-10]: Attention is called to the following rejected compensation bills abolishing the right of election after accident: 1915 Session, House Bills No. 206, 302, Journal, pp. 720, 1021; 1917 Session, House Bills No. 319, 485, Journal, pp. 567, 568; 1919 Session, House Bill No. 134, Journal, p.…