Legal Definitions - widow's election

The term "widow's election," while historically referring specifically to a surviving wife, is now more broadly and accurately known as a spousal elective share or right of election. This legal principle grants a surviving spouse the right to choose between two options:

• Accepting the inheritance (if any) that their deceased spouse provided for them in a will, OR
• Rejecting the will's provisions and instead claiming a specific portion of the deceased spouse's estate as determined by state law.

This right exists to protect surviving spouses from being completely disinherited or left with an unreasonably small share of their deceased spouse's estate, regardless of what the will states.

Examples:

• Scenario 1: Disinheritance or Minimal Provision

  After 30 years of marriage, Mark passes away. His will, drafted shortly before his death, leaves his wife, Susan, only a small antique clock and directs the rest of his multi-million dollar estate to his adult children from a previous marriage. Susan feels this is an unfair and inadequate provision after their long marriage.

  Explanation: Susan can exercise her "widow's election" (spousal elective share). Instead of accepting just the antique clock, she can choose to claim the statutory percentage of Mark's estate that state law guarantees to a surviving spouse. This legal right allows her to receive a much larger, legally mandated share of the estate, overriding the minimal bequest in the will.

• Scenario 2: Preference for Different Assets

  Eleanor's will leaves her husband, David, a commercial property she owned and a collection of rare stamps. David, however, is retired and would prefer liquid assets (cash) to manage his living expenses and doesn't want the responsibility of managing a commercial building or selling a stamp collection. The state's elective share is 30% of the adjusted gross estate.

  Explanation: David can exercise his "widow's election." If the value of the commercial property and stamps is less than 30% of Eleanor's estate, or if he simply prefers a cash distribution, he can choose to take the statutory elective share instead of the specific items bequeathed in the will. This allows him to receive a different form of inheritance that better suits his current financial needs.

• Scenario 3: Will Predates Marriage

  Michael married Sarah later in life. Before their marriage, Michael had a will drafted that left his entire estate to his favorite university. He never updated the will after marrying Sarah, assuming she would be provided for through other means. Upon Michael's death, Sarah discovers the will makes no mention of her.

  Explanation: Sarah can exercise her "widow's election." Since Michael's will makes no provision for her as his surviving spouse, she can choose to claim the statutory elective share of his estate. This ensures she receives a legally mandated portion of his assets, even though the will itself did not include her.