Legal Definitions - spousal share

The spousal share, also known as an elective share or forced share, is a legal right that ensures a surviving spouse receives a portion of their deceased partner's estate, regardless of what the will states. This protection is established by state laws and allows the surviving spouse to choose between what is provided for them in the will or a specific percentage or amount determined by statute. Its purpose is to prevent a spouse from being completely disinherited or left with an unfairly small amount, upholding the principle that a spouse has a fundamental claim to a portion of the marital assets after their partner's death. The exact amount of the spousal share varies significantly by state, often depending on factors such as the length of the marriage, the total value of the estate, and sometimes the number of children.

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

• Intentional Disinheritance: Imagine John and Mary have been married for 25 years. Shortly before his death, John drafts a new will, explicitly stating that his entire multi-million dollar estate should go to a specific charity, leaving nothing for Mary. In this situation, Mary can invoke the spousal share laws in their state. Instead of receiving nothing as per the will, she can elect to take the statutory percentage (which might be one-third or one-half, depending on the state) of John's estate, ensuring she receives a substantial portion despite his attempt to disinherit her.

• Insufficient Provision: Consider a scenario where Robert and Susan have been married for 10 years. Robert's will leaves Susan a small collection of antique books and $50,000, while the remainder of his $1.5 million estate is bequeathed to his adult children from a previous marriage. Susan can compare the value of the books and $50,000 to what her state's spousal share law would grant her. If the state's spousal share (for example, 25% of the estate, or $375,000) is significantly higher, she can choose to claim that larger statutory amount instead of the minimal bequest in the will, ensuring her financial security.

• Outdated Will: Sarah and Michael were married for 35 years. Michael's will, written early in their marriage, leaves a significant portion of his estate to his siblings and only a modest sum to Sarah, assuming she would be financially secure through other means. However, due to unforeseen circumstances, Sarah's financial situation has changed, and the modest sum is now insufficient for her needs. Even if Michael's intentions were not malicious, the spousal share allows Sarah to claim a larger portion of the estate than specified in the outdated will. This ensures that a long-term spouse is not left in financial hardship, reflecting the state's policy that marriage creates a strong financial partnership that should be recognized after death.