Legal Definitions - election by spouse

Election by spouse refers to the legal choice a surviving spouse makes regarding their inheritance from their deceased partner's estate. When a person dies, their will typically dictates how their assets are distributed. However, many jurisdictions provide a surviving spouse with a "right of election," which allows them to choose between accepting the provisions made for them in the will (if any) or claiming a statutory share of the deceased spouse's estate, as defined by law.

The act of making this choice is called an "election by spouse." This right exists to protect a surviving spouse from being completely disinherited or left with an inadequate portion of the estate, regardless of the will's contents. The surviving spouse must typically make this election within a specific timeframe and according to formal legal procedures.

• Example 1: Overriding Disinheritance

  Arthur passes away, and his will explicitly states that his entire estate should go to his children from a previous marriage, leaving his current wife, Brenda, nothing. Brenda, upon learning of the will's contents, consults an attorney. She discovers that her state's law grants a surviving spouse the right to claim one-third of the deceased spouse's estate, regardless of the will. Brenda formally files paperwork with the probate court to claim this one-third share.

  This illustrates an election by spouse because Brenda is actively choosing to exercise her legal right to a statutory share, thereby overriding the terms of Arthur's will that sought to disinherit her.

• Example 2: Choosing a More Favorable Share

  Clara's will leaves her husband, David, a specific sum of $50,000, with the remainder of her multi-million dollar estate designated for various charities. David reviews the will and calculates that his statutory share, based on state law, would amount to $1.5 million. Recognizing that the statutory share is significantly more substantial than what the will provides, David files a formal notice with the court to claim his statutory share instead of the $50,000 bequest.

  This demonstrates an election by spouse because David is making a deliberate choice to take the larger statutory share provided by law, rather than accepting the smaller amount specified in Clara's will.

• Example 3: Affirming the Will's Provisions

  Eleanor dies, and her will leaves her husband, Frank, their marital home, a substantial investment portfolio, and a significant cash bequest. After reviewing the will and understanding his state's right of election, Frank determines that the provisions made for him in Eleanor's will are far more generous than what his statutory share would be. He decides not to file any paperwork to claim a statutory share, effectively accepting the terms of the will.

  While Frank doesn't "reject" the will, his decision not to exercise his right to a statutory share is still an election. He is consciously choosing to accept the will's provisions, which is a form of election by spouse, as he has weighed his options and made a choice.