Also known as: elective share rights · elective-share right · elective share · right of election · spousal elective share
Written by attorneys — see sources below.
A statutory entitlement allowing a surviving spouse to claim a fractional share of the decedent's augmented estate. The right attaches upon the death of a spouse domiciled in the state and is subject to waiver by signed writing or forfeiture for felonious killing.
Eduardo and his spouse signed a one-page agreement during the marriage stating he would accept a lump-sum payment instead of any estate claim. After her death the personal representative asserted the document barred any further claim. The court enforced the signed writing as a valid waiver of the right.
Elena intentionally killed her husband and was convicted of the felony. She later sought an elective share of his estate. The probate court denied the claim because the killing caused forfeiture of all benefits including the elective share.
Ewan transferred assets into a revocable trust shortly before death to reduce the probate estate. His surviving spouse Eileen petitioned for an elective share. The court included the trust assets in the augmented estate because the transfers were illusory and did not defeat the right.
Ferdinand Straus died on July 1, 1934, leaving a last will and testament dated May 5, 1934, which contained a provision for a trust for his wife for her life of one-third of the decedent’s property both real and personal. On June 28, 1934, three days before his death, he executed trust agreements by which, in form at least, he transferred to trustees all his real and personal property. The beneficiary named in the trust agreement brought this action to compel the trustees to carry out its terms. The widow challenged the validity of the transfer to the trustees. The trial court found that the trust agreements were made, executed and delivered by said Ferdinand Straus for the purpose of evading and circumventing the laws of the State of New York, and particularly sections 18 and 83 of the Decedent Estate Law. The trial court also found that the settlor reserved the enjoyment of the entire income as long as he should live, and a right to revoke the trust at his will, and in general the powers granted to the trustees were in terms made subject to the settlor’s control during his life.
View caseYes. A signed written agreement executed before or after marriage waives the right and is enforceable without consideration.
Supporting sources
Yes. The killer forfeits the elective share along with other estate benefits.
Supporting sources
No. The allowances are payable in addition to the elective share amount.
Supporting sources
Nonprobate transfers are excluded from the augmented estate when the petition is filed more than nine months after death.
Supporting sources
Yes. An agreement is unenforceable if the surviving spouse proves it was involuntary or the result of duress.
Supporting sources
…her or him in case of intestacy. That was changed by section 18 of the revised Decedent Estate Law. By that section “a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.” These limitations…