Legal Definitions - forced share

A forced share, also known as an elective share, is a legal provision in some state laws that guarantees a surviving spouse (and in rare, limited circumstances, certain other heirs like children) a minimum portion of a deceased person's estate, regardless of what the deceased person's will dictates. This means that even if a will attempts to leave the surviving spouse nothing, or a very small amount, state law allows the surviving spouse to "elect" to take this legally mandated share instead of what was provided in the will.

The primary purpose of a forced share is to protect surviving spouses from being completely disinherited or left with inadequate financial support after their spouse's death. The specific amount of a forced share varies significantly by state. It might be a fixed percentage (e.g., one-third or one-half of the estate), a specific dollar amount, or it could depend on factors such as the length of the marriage or the number of children the couple had together.

While primarily applicable to spouses, some states have very limited provisions for children to claim a forced share, typically only when it appears the child was accidentally or mistakenly omitted from the will. Unlike spouses, parents generally have the right to intentionally disinherit their children, which would override any potential forced share claim by a child.

Here are some examples of how a forced share might apply:

• Example 1: Disinherited Spouse
  John and Mary have been married for 40 years. When John passes away, his will states that his entire estate should go to his golf club, explicitly leaving nothing to Mary. In a state with forced share laws, Mary would not be bound by John's will. She could choose to "elect" against the will and claim her statutory forced share, which might be one-third or one-half of John's estate, depending on state law. This ensures she receives a portion of their marital assets despite John's attempt to disinherit her.

• Example 2: Spouse Left a Small Amount
  Sarah, a wealthy businesswoman, passes away. Her will leaves her husband, David, a small annuity of $50,000 per year, but directs the vast majority of her $10 million estate to a trust for her pet parrots. David and Sarah had been married for 15 years. If the state where Sarah lived has a forced share statute, David could review the value of the annuity versus the forced share amount. If the forced share (e.g., 30% of the $10 million estate, or $3 million) is significantly more than the present value of the annuity, David could choose to take the forced share instead of what was specified in the will, ensuring he receives a more substantial portion of the estate.

• Example 3: Accidentally Omitted Child (Limited Circumstance)
  Mark drafted his will when his daughter, Emily, was five years old, leaving everything to his wife. Ten years later, Mark and his wife adopted a son, Alex, but Mark never updated his will before his sudden passing. In some states, if a child is born or adopted after a will is made and is not mentioned or provided for, it's presumed to be an accidental omission. Alex might be able to claim a limited forced share as a "pretermitted heir" (a child omitted from a will), even though Mark's will didn't mention him. This is distinct from a parent intentionally choosing to leave a child out of a will, which generally cannot be challenged by a forced share claim.