Also known as: statutory shares · elective share · forced share
Written by attorneys · grounded in primary & secondary sources — see below
A right of a surviving spouse to claim a fixed portion of the decedent's estate in lieu of taking under the will or by intestacy. The share prevents complete disinheritance of the surviving spouse and extends to both real and personal property owned at death.
Sofia Stern intentionally kills her husband Seth Shapiro. Sofia then petitions the probate court for her statutory share of Seth's estate. The court denies the petition because the killing was felonious and intentional, causing Sofia to forfeit any right to the share. The estate passes as though Sofia had disclaimed her interest.
Samantha Stone's late husband created a revocable trust holding substantial assets and retained a general power of appointment over them. After his death Samantha elects her statutory share. The court includes the trust assets in the estate for purposes of calculating her share because the husband retained control until death.
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The statutory share replaced dower and curtesy in most jurisdictions. Unlike dower, which attached only to real property and required seisin, the statutory share covers both real and personal property owned at death and does not require issue.
Yes. A written agreement signed by the surviving spouse before or after marriage can waive the right to an elective share, homestead allowance, exempt property, and family allowance. The agreement is enforceable without separate consideration.
Yes. An individual who feloniously and intentionally kills the decedent forfeits all benefits under the probate code article, including the elective share that constitutes the statutory share. The estate passes as if the killer had disclaimed the interest.
Yes. The family allowance, homestead allowance, and exempt property are payable in addition to the elective share and are not charged against it unless the governing instrument provides otherwise.
…the assets of a revocable trust will be considered part of the “estate of the decedent” in determining the surviving spouse’s statutory share. Treating the components of the decedent’s estate plan separately, and not as parts of an interrelated whole, brings about inconsistent results. Applying c. 191, § 9, the judge correctly…