Also known as: widow's election · widowers election · widower's election · elective share · right of election
Written by attorneys · grounded in primary & secondary sources — see below
An option available to a surviving spouse to take a statutory share of the decedent's estate instead of the provisions made in the decedent's will. The right may be waived only by a signed written agreement and is forfeited by a spouse who feloniously and intentionally kills the decedent.
Wilma Wright and her husband signed a one-page mid-marriage agreement in which she accepted a lump-sum payment in lieu of any claim to his business or estate. After his death the personal representative asserted the agreement barred her petition for an elective share. The court enforced the signed writing and denied the petition.
Wesley Wells was convicted of feloniously killing his wife. He petitioned for an elective share of her augmented estate. The court held that the conviction caused him to forfeit every benefit under the probate code, including the elective share, and the estate passed as if he had disclaimed.
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Winter Wolfe created a revocable trust transferring most of his assets to his children while retaining full control during life. After his death his surviving spouse Wren Wallace petitioned for an elective share. The court treated the trust as illusory and included the assets in the augmented estate subject to her election.
A surviving spouse may waive the right only by a written agreement signed before or after marriage. The agreement is enforceable without consideration.
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No. An individual who feloniously and intentionally kills the decedent forfeits the elective share along with all other benefits under the probate article.
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The surviving spouse may elect to take the statutory share or accept the will's disposition of the community property.
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No. The allowances are payable in addition to any elective-share amount.
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…her or him in case of intestacy. That was changed by section 18 of the revised Decedent Estate Law. By that section “a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.” These limitations…