Legal Definitions - right of election

The right of election is a legal entitlement that allows a surviving spouse to choose between two options regarding their deceased spouse's estate.

Instead of accepting only what was specifically left to them in the deceased spouse's will, the surviving spouse can instead choose to receive a portion of the estate as defined by state law. This legally mandated share, often called an "elective share" or "forced share," ensures that a surviving spouse receives a minimum amount from the estate, even if the will attempted to leave them less or nothing at all. This right exists to protect a surviving spouse from being disinherited or left with an unfairly small portion of their spouse's assets.

• Example 1: Protecting Against Disinheritance

  John and Mary are married. John drafts a will stating that his entire estate should go to his favorite charity, explicitly leaving nothing to Mary. After John's death, Mary can exercise her right of election. Instead of receiving nothing as per the will, she can claim the statutory elective share (e.g., one-third or one-half) of John's estate, as allowed by their state's probate laws. This ensures she receives a significant portion despite John's will's attempt to disinherit her.

• Example 2: Ensuring Fair Provision in Large Estates

  Sarah and David have been married for 30 years. David's will leaves Sarah a small antique clock, while the rest of his multi-million dollar estate is bequeathed to his siblings. Sarah can invoke her right of election. Rather than accepting just the clock, she can choose to receive the larger statutory share of David's estate that state law provides for surviving spouses. This protects her financial security, which would be jeopardized by the will's terms, despite the estate's substantial value.

• Example 3: Blended Families and Prior Commitments

  Robert, in his second marriage to Lisa, has two adult children from his first marriage. His will leaves his entire estate to his children, making no provision for Lisa, his current wife of 15 years. Upon Robert's death, Lisa can exercise her right of election. This allows her to claim a legally defined percentage of Robert's estate, even though his will intended to leave everything to his children. The right of election prevents Lisa from being completely disinherited and provides for her financial well-being, balancing the deceased's wishes with the surviving spouse's legal entitlements.