Also known as: spouse's elective share · elective share · elective shares · spousal share
Written by attorneys · grounded in primary & secondary sources — see 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 share is calculated against both probate assets and specified nonprobate transfers. Amounts already received by the spouse from the estate are credited against the claim.
Skylar Sullivan intentionally kills her husband to accelerate inheritance. After conviction the personal representative denies her petition for an elective share. The court rules that the felonious killing causes forfeiture of every benefit including the elective share so the estate passes as if Skylar had disclaimed her interest.
Serena Soto dies intestate survived by her spouse Spencer Silver. Spencer petitions for an elective share of the augmented estate. The court grants the petition because a surviving spouse may elect against an intestate estate under the governing statute.
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Yes. The homestead allowance, exempt property, and family allowance are payable in addition to the elective-share amount and are not charged against it.
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The killer forfeits the elective share along with all other benefits under the probate article. The estate then passes as if the killer had disclaimed the interest.
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Yes. A signed written agreement before or after marriage waives the right of election when it uses language relinquishing all rights in the other spouse's property or estate.
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The value of any constitutional homestead right received by the surviving spouse is charged against the statutory homestead allowance to the extent the home would have been part of the estate but for the constitutional protection.
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…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…