Legal Definitions - statutory share

A statutory share refers to a portion of a deceased person's estate that state law guarantees to certain individuals, most commonly a surviving spouse, regardless of what the deceased person's will states. It is also sometimes called an "elective share" or "forced share."

The primary purpose of a statutory share is to prevent a spouse from being completely disinherited or left with an unreasonably small portion of their deceased partner's estate. When a person dies, their surviving spouse typically has a choice: either accept what is provided for them in the will, or "elect" to take the statutory share as defined by state law. The specific amount of a statutory share varies significantly by state and can be a fixed percentage (e.g., one-third or one-half of the estate), a specific dollar amount, or an amount that depends on factors like the length of the marriage.

In very limited circumstances, some states also have statutory share provisions for children, usually when a child was unintentionally omitted from a will due to an oversight rather than a deliberate decision to exclude them.

Here are some examples illustrating how a statutory share works:

• Example 1: Protecting a Long-Term Spouse
  After 40 years of marriage, Robert passes away. In his will, drafted shortly before his death, Robert leaves 90% of his substantial estate to a charitable foundation and only 10% to his wife, Susan. Feeling that this is unfair and does not reflect their long partnership, Susan can choose to reject the 10% offered in the will. Instead, she can claim her state's statutory share, which might entitle her to, for instance, one-third or one-half of Robert's estate, overriding the terms of his will. This demonstrates how the statutory share protects a surviving spouse from being largely disinherited.

• Example 2: Providing for a New Spouse
  Maria, a widow with three adult children, marries John. Five years later, Maria dies. Her will, which she wrote 15 years ago before meeting John, leaves her entire estate to her three children. John is not mentioned in the will. Because John is Maria's surviving spouse, he can claim his statutory share according to their state's laws. This ensures he receives a legally mandated portion of Maria's estate, even though her existing will did not provide for him, as it was created before their marriage.

• Example 3: Unintentional Omission of a Child
  David wrote his will when his only child, Emily, was born. Ten years later, he and his wife had another child, Michael. David passed away unexpectedly without ever updating his will to include Michael. In some states, if it can be shown that Michael was unintentionally omitted from the will (e.g., because he was born after the will was drafted), Michael might be able to claim a statutory share of David's estate. This share would typically be what he would have received if David had died without a will, illustrating the limited application of statutory shares for children when there's a clear oversight.