Also known as: elective share right · elective-share rights · elective share · spousal elective share · right of election
Written by attorneys — see sources below.
A statutory right of a surviving spouse to claim a fractional share of the decedent's augmented estate in lieu of taking under the will or by intestacy. The right may be waived only by a signed written agreement and is forfeited by a spouse who feloniously and intentionally kills the decedent.
Ewan Eckhart and his spouse signed a one-page agreement during the marriage in which Ewan accepted a lump-sum payment in place of any claim to the company or estate. After the spouse died, Ewan petitioned for an elective share. The court enforced the signed writing and denied the petition because the agreement satisfied the statutory requirements for waiver.
Ezra Eastman was convicted of feloniously and intentionally killing his spouse. He then sought an elective share of the augmented estate. The court held that the killing caused Ezra to forfeit all benefits under the probate code, including any elective share, and directed the estate to pass as if he had disclaimed his interest.
Elena Estrada's spouse created a revocable inter vivos trust before their marriage and retained the power to revoke it until death. After the spouse died, Elena asserted an elective-share claim that included the trust principal. The court included the trust value in the augmented estate because the retained revocation power made the assets reachable by the surviving spouse's rights.
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 caseA surviving spouse may waive the right of election only by a written agreement signed by the spouse before or after marriage. The agreement is enforceable without consideration.
An individual who feloniously and intentionally kills the decedent forfeits all benefits under the probate code with respect to the decedent's estate, including the elective share.
The family allowance is not chargeable against any benefit passing to the surviving spouse by way of elective share. The allowances are payable in addition to the elective share.
An agreement is unenforceable if the surviving spouse proves it was involuntary or the result of duress. A credible threat of immediate reputational harm that leaves no reasonable alternative can render the waiver invalid.
…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…