Legal Definitions - election under the will

Election under the will refers to a legal right available to a surviving spouse when their deceased spouse's will does not provide them with a certain minimum share of the estate. Most state laws guarantee a surviving spouse a specific portion of the deceased spouse's assets, known as the "statutory share" or "elective share," regardless of what the will dictates.

If the will leaves the surviving spouse less than this legally mandated share, the surviving spouse has a choice:

• They can accept the inheritance as outlined in the will.
• They can "elect under the will" (also sometimes called "taking against the will") to reject the will's provisions and instead claim their statutory share of the estate as defined by state law.

This decision is typically made when the statutory share would provide the surviving spouse with a significantly larger portion of the estate than what was allocated to them in the deceased spouse's will.

Examples:

• Example 1: Disinheritance or Minimal Bequest

  John passes away, leaving a will that grants his wife, Mary, a small antique collection and $25,000, while the vast majority of his multi-million dollar estate is bequeathed to his children from a previous marriage. Mary consults with a legal professional and discovers that her state's law guarantees a surviving spouse a one-third share of the deceased spouse's estate. Realizing that her statutory share would amount to millions of dollars, significantly more than the will offered, Mary decides to elect under the will. She rejects the specific items left to her in John's will and instead claims her one-third statutory share of the entire estate.

• Example 2: Restrictive Trust Provisions

  Sarah's husband, David, dies, and his will establishes a trust designed to provide Sarah with a modest monthly income for the remainder of her life. The trust terms specify that she cannot access the principal funds, which are ultimately designated for David's alma mater. Sarah learns that her state's elective share law entitles her to outright ownership of 50% of David's estate. While the trust offers some financial support, Sarah prefers to have direct control over a substantial portion of the assets for her immediate needs and future planning. She exercises her right of election under the will, choosing to receive her 50% statutory share directly rather than being bound by the restrictive terms of the trust.

• Example 3: Significant Charitable Donations

  Robert, a wealthy individual, passes away. His will dedicates 90% of his substantial estate to various charitable organizations he passionately supported throughout his life, leaving his wife, Emily, with only 10% of the estate. Emily, while respecting Robert's philanthropic spirit, finds that 10% of the estate is insufficient to maintain her accustomed lifestyle and ensure her long-term financial security. Her state's law allows a surviving spouse to claim a "statutory share" of 30% of the estate. Emily decides to elect under the will, rejecting the 10% bequest and instead claiming her 30% statutory share, which provides her with a more substantial and secure inheritance.