Legal Definitions - taking against the will

Taking against the will refers to a legal right that allows a surviving spouse to reject the inheritance provisions made for them in their deceased spouse's will. Instead of accepting what the will specifies, the surviving spouse chooses to claim a portion of the estate that is guaranteed to them by state law, often referred to as an "elective share" or "statutory share." This action is typically taken when the share mandated by law is more substantial or more beneficial than what the will would have otherwise provided.

Here are a few examples to illustrate this concept:

• Example 1: Disproportionate Inheritance

  After 25 years of marriage, Mark passes away, leaving a will that allocates a small annuity to his wife, Susan, but directs the vast majority of his substantial estate to his children from a previous marriage. Susan consults with an attorney and discovers that state law entitles a surviving spouse to a much larger percentage of the estate than the annuity provides. Susan decides to take against the will, asserting her legal right to claim her statutory share of Mark's estate, which is significantly more valuable than what the will had originally left her.

• Example 2: Intentional Disinheritance

  Eleanor and Robert had a strained relationship in their later years. Shortly before his death, Robert updated his will to explicitly state that Eleanor should receive nothing from his estate, intending to disinherit her completely and leave everything to a distant cousin. Despite Robert's wishes, Eleanor, as the surviving spouse, can exercise her right to take against the will. This allows her to claim the minimum share of Robert's estate that state law guarantees to a surviving spouse, overriding his attempt to exclude her entirely.

• Example 3: Preference for Liquid Assets

  David's will leaves his wife, Maria, a valuable but illiquid commercial property, while the rest of his considerable financial portfolio is bequeathed to his alma mater. Maria, who is nearing retirement, needs readily accessible funds for living expenses and does not wish to manage a commercial property. If her statutory share of David's entire estate (which would include his financial assets) is greater than the value of the property, or if she simply prefers a cash distribution, Maria could choose to take against the will. This action would allow her to receive her legally mandated share of the estate, potentially in more liquid assets, rather than being bound by the specific bequest of the commercial property.