Legal Definitions - elective share

The elective share is a legal right that protects a surviving spouse from being completely disinherited or left with an unfairly small portion of their deceased spouse's estate. In many U.S. states, this law allows a surviving spouse to choose to receive a specific percentage of the deceased spouse's assets, even if the will states otherwise or provides a lesser amount.

Think of it as a safety net: if a will attempts to leave a spouse out entirely, or provides them with very little, the surviving spouse can "elect" (choose) to override the will and claim this legally mandated share instead. The exact percentage varies by state, but it is typically a fraction of the deceased spouse's probate estate (assets that pass through the court process of probate). This system is common in "separate property states," where spouses generally own assets individually unless they specifically combine them.

Here are a few examples to illustrate how the elective share works:

• Scenario 1: Intentional Disinheritance
  Example: After a long marriage, Mr. Henderson passes away. His will, drafted shortly before his death, explicitly states that his wife, Mrs. Henderson, is to receive nothing, and all his assets are to go to his children from a previous marriage. Mrs. Henderson, who relied on Mr. Henderson's income and assets, is left without financial support.

  Explanation: In this situation, Mrs. Henderson can invoke her right to an elective share. Despite what the will says, she can petition the court to receive the statutory percentage of Mr. Henderson's estate (e.g., one-third), ensuring she has financial resources that the law intends for a surviving spouse.

• Scenario 2: Inadequate Provision in a Will
  Example: Ms. Rodriguez's husband, Mr. Rodriguez, dies with a substantial estate. His will leaves Ms. Rodriguez a single antique family heirloom valued at $5,000, and directs the remaining $2 million of his estate to a distant cousin he barely knew. Ms. Rodriguez had contributed significantly to their shared life and finances.

  Explanation: Ms. Rodriguez can choose to take her elective share. If the state's elective share is, for instance, one-third of the estate, she could claim approximately $666,666 instead of just the $5,000 heirloom. This allows her to receive a more equitable portion of the estate, reflecting the legal protection for spouses.

• Scenario 3: Choosing a Better Option
  Example: Mr. Chen's will leaves his wife, Mrs. Chen, the right to live in their family home for the rest of her life (a "life estate"), but states that upon her death, the home will pass to his favorite charity. The rest of his estate goes to his siblings. Mrs. Chen realizes that while she can live in the home, she won't own it outright, cannot sell it, or pass it to her own children, and the value of this life estate is less than what her statutory share of the entire estate would be.

  Explanation: Mrs. Chen can choose to "elect against the will." Instead of accepting the life estate in the home, she can claim her elective share, which would give her outright ownership of a percentage of the total value of Mr. Chen's entire estate, including the home. This might provide her with more financial flexibility and a larger overall inheritance than what the will originally offered.