Also known as: take against the will · takes against the will · took against the will · taking against will · electing against the will · right of election
Written by attorneys · grounded in primary & secondary sources — see below
A statutory right allowing a surviving spouse to reject the provisions of the decedent's will and instead claim a designated share of the augmented estate. The share equals fifty percent of the marital-property portion of that estate when the decedent was domiciled in the enacting state. The right is subject to waiver by written agreement and operates independently of homestead, exempt property, and family allowances.
After Taliah Tang died domiciled in the state, her will left her husband Tyler Taylor only a small bank account while directing most assets into a revocable trust for her children. Tyler filed a timely petition claiming his statutory share. The court calculated the augmented estate to include the trust assets and awarded Tyler fifty percent of the marital-property portion.
Tabitha Taylor survived her husband Tiana Tan and exercised her right of election against a will that left her nothing. She also petitioned for the homestead allowance, exempt property, and family allowance. The court granted both the elective-share amount and the full statutory allowances without any offset between them.
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Before their marriage Tamara Tan and Tanya Tang signed a written agreement in which Tamara waived any right to elect against Tanya's estate. After Tanya's death the personal representative relied on the agreement to deny Tamara's petition. The court enforced the waiver because it was a signed writing executed by the surviving spouse.
A surviving spouse domiciled in one state sought to take against the will of a decedent who had died in another state. The court applied the law of the decedent's domicile to determine whether the election right existed and in what amount. The spouse received the share permitted under that domiciliary law rather than the law of the forum.
The spouse receives an elective-share amount equal to fifty percent of the marital-property portion of the augmented estate. The augmented estate includes the probate estate plus specified nonprobate transfers. The marital-property portion is determined under statutory formulas that account for the length of the marriage.
Supporting sources
No. The allowances are awarded in addition to the elective-share amount. They are not charged against or treated as an advance on the share. This separation ensures the spouse receives both immediate support and the statutory fractional interest.
Supporting sources
The right may be waived only by a written agreement signed by the surviving spouse before or after marriage. The agreement requires no consideration to be enforceable. It becomes unenforceable if the spouse proves it was involuntary, the product of duress, or lacked required financial disclosure and access to independent counsel.
Supporting sources
No. Assets in a revocable trust are included in the augmented estate for purposes of calculating the elective share. The statute pulls back such nonprobate transfers to prevent disinheritance. The spouse may therefore reach a portion of those assets through the election.
Supporting sources
…of her rights against the defendant. [^maj-10]: Attention is called to the following rejected compensation bills abolishing the right of election after accident: 1915 Session, House Bills No. 206, 302, Journal, pp. 720, 1021; 1917 Session, House Bills No. 319, 485, Journal, pp. 567, 568; 1919 Session, House Bill No. 134, Journal, p.…