Also known as: forced shares · elective share
Written by attorneys · grounded in primary & secondary sources — see below
A statutory entitlement of a surviving spouse to a fractional share of the decedent spouse's estate. The right is exercisable by election against the terms of the will and reaches both probate and certain nonprobate assets in the augmented estate.
Fernando Farrell feloniously and intentionally kills his wife Flora Ford. Flora's will leaves her entire estate to Fernando. The probate court determines that Fernando's act triggers forfeiture under the governing statute. Fernando receives nothing from the estate, and the property passes as though he had disclaimed any interest.
Francois Fortier, domiciled in France, dies owning New York bank accounts. His will leaves nothing to his surviving spouse Francesca Fowler. Francesca petitions in New York to elect her forced share. The court applies New York internal law to the accounts and awards her the statutory fraction despite French forced-share rules favoring children.
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Yes. The augmented estate used to calculate the elective share includes certain nonprobate transfers made by the decedent during marriage, so the surviving spouse's claim reaches assets that would otherwise pass outside probate.
No. An individual who feloniously and intentionally kills the decedent forfeits the elective share along with every other benefit under the probate article, and the estate passes as if the killer had disclaimed.
The forced share is a statutory fractional interest in the decedent's entire augmented estate that the survivor may elect against the will, whereas dower and curtesy were common-law life estates limited to real property.
No. Community-property states give each spouse an undivided half interest in marital acquisitions during life, so there is no need for a separate elective-share statute at death.
…Opinion of the Court by Tufte, Justice. [¶1] Brianna McLaen appeals from an order granting Tyson Hall’s petition for an elective share of the Estate of Kandi Ann Hall. McLaen argues the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate and by deciding a warranty…