Can I exercise elective rights as conservator of my grandmother to my grandfather's Will?

Full question:

I am the appointed conservator of my 68-year-old grandmother. My grandfather passed away two weeks ago, leaving a will. I wanted to know if my grandmother has the right of election on the property. I want to ensure that she inherits enough to support herself till she is alive. Can I exercise elective rights, if any, on her behalf?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Alabama

Answer:

The right of election is a private right and can be exercised only by the surviving spouse personally during his/her lifetime. Any guardian, custodian or other persons appointed for the surviving spouse must approach the court for exercising such a right. The court may grant it only if it finds that the surviving spouse requires such an election for reasonable support during his/her lifetime. The relevant law in Alabama State on this issue is Ala. Code § 43-8-71.
 
Ala. Code § 43-8-71 provides as follows:
 
“The right of election of the surviving spouse may be exercised only by the surviving spouse during his lifetime. If a guardian, custodian, curator, or conservator has been appointed for the surviving spouse, the right of election may be exercised only by order of the court upon petition of the fiduciary or upon the court's own initiative, after finding that exercise is necessary to provide adequate support for the surviving spouse during his probable life expectancy.”
 
Code of Ala. § 43-8-73 
Procedure for surviving spouse to make election.
 
(a) The surviving spouse may elect to take his elective share by filing with the court and mailing or delivering to the personal representative, if any, a petition for the elective share within six months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires.
The court may extend the time for election for cause shown by the surviving spouse before the time for election has expired.
(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its satisfaction from the assets of the estate. If it appears that a fund or property included in the estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
(e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.