Also known as:statutory elective shares · elective share · elective shares · spousal elective 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 instead of any provision made by will or intestacy. The right applies to both probate assets and specified nonprobate transfers and is calculated after satisfaction of claims, taxes, and allowances.
Sources & Authorities· 8 primary sources
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Uniform Acts
Restatements
Casebooks
Study Supplements
How it applies
Common Examples
2
Killer Forfeits Elective Share
Scott Summers feloniously and intentionally kills his wife Samantha Stone. Summers petitions the probate court for an elective share of Stone's augmented estate. The court denies the petition because Summers's intentional killing causes automatic forfeiture of every benefit under the elective-share statute.
Joint Account Challenged as Fraudulent
Lester Finley places substantial funds into a joint bank account with his children from a prior marriage shortly before his death. His surviving spouse Edna Finley sues to set aside the account under the statute that voids transfers made with intent to defeat the elective share. The trial court dismisses the suit after finding insufficient evidence that the transfers were fraudulent.
Finley v. Finley726 S.W.2d 923 (Tenn.App.1986)
Common questions
Frequently Asked
5
Does a surviving spouse receive homestead, exempt property, and family allowances in addition to an elective share?+
Yes. The governing statute provides that these allowances are not charged against the elective share and are payable in addition to it. The allowances address immediate post-death needs while the elective share protects the spouse's long-term interest in the augmented estate.
Supporting sources
When must a surviving spouse file a petition for an elective share to include nonprobate transfers in the augmented estate?+
The petition must be filed within nine months after death or six months after probate, whichever is later. Filing more than nine months after death excludes nonprobate transfers from the augmented estate even if the later probate deadline is met.
Supporting sources
Can a mid-marriage agreement waive the right to an elective share?+
Yes. A written agreement signed by the surviving spouse before or after marriage waives the elective share if it contains clear waiver language. The statute enforces such agreements without consideration, though lack of financial disclosure may support an equitable challenge in some cases.
Supporting sources
Does a spouse who feloniously and intentionally kills the decedent forfeit the elective share?+
Yes. The statute provides that such a killer forfeits every benefit under the article, including the elective share. The estate then passes as if the killer had disclaimed the share.
Supporting sources
Is a postnuptial waiver of elective-share rights enforceable if signed under economic or reputational pressure?+
It depends on whether the surviving spouse proves the agreement was involuntary or the product of duress. Courts examine power imbalance, the nature of any threat, the opportunity for independent advice, and whether the pressure overcame the spouse's free will.
Supporting sources
Trusts and Estates Decedents EstatesFamily protection · Spouse’s forced or elective sharesUBEIntermediate