Can a spouse elect against a will in Alabama?

Full question:

My wife died due to heart disease 2 months back and left a will dividing her property equally among our two children and me. What I want to know is- am I entitled for an elective share of her property or only the share mentioned in the will?

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

Answer:

Yes. You are entitled for an elective share of your wife's property. The Alabama law allows the surviving spouse to either accept the will of the decedent or renounce from the will and take an elective share. You may elect to take the elective share by filing a petition before the court and mailing or delivering the same to the personal representative within six months after the death or within six months after the probate of the will whichever expires last. The court may also extend the time for election if you show a cause before the expiry of the time for election.

Here is the relevant law for more details:
 
Ala. Code § 43-8-70
Right of surviving spouse to elective share.
(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the estate. The elective share shall be the lesser of:
(1) All of the estate of the deceased reduced by the value of the surviving spouse's separate estate; or
(2) One-third of the estate of the deceased.
(b) The “separate estate” of the surviving spouse shall include:
(1) All property which immediately after the death of the decedent is owned by the spouse outright or in fee simple absolute;
(2) All legal and equitable interests in property the possession or enjoyment of which are acquired only by surviving the decedent; and
(3) All income and other beneficial interests:
a. Under a trust;
b. In proceeds of insurance on the life of the decedent; and
c. Under any broad-based nondiscriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.
(c) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

Ala. Code § 43-8-71
    Right of election personal to surviving spouse.
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.

Ala. Code § 43-8-72
Waiver of right to elect and of other rights.
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or a waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other at death and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

Ala. Code § 43-8-73
Procedure for making election; petition; time limit; notice and hearing; withdrawal of demand; order of court; enforcement of order.
(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.
Ala. Code § 43-8-74
Entitlement of surviving spouse to certain benefits regardless of election.
A surviving spouse is entitled to homestead allowance, exempt property, and family allowance, whether or not he elects to take an elective share.

Ala. Code § 43-8-75
How elective share satisfied; what property applied first; apportionment of others' liability for balance of elective share.
(a) In the proceeding for an elective share, values included in the estate which pass or have passed to the surviving spouse, or which would have passed to the surviving spouse but were renounced, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the estate. For purposes of this subsection, the electing spouse's beneficial interest in any life estate or in any trust shall be computed as if worth one-half of the total value of the property subject to the life estate, or of the trust estate, unless higher or lower values for these interests are established by proof; provided, however, that, to the extent that the electing spouse's beneficial interest is a life estate or is an interest in a trust and is coupled with a general power of appointment (whether exercisable by deed or by will or by either), the beneficial interest shall be computed as being equal to two-thirds of the total value of the property subject to the life estate, or of the trust estate, with respect to which the general power of appointment exists.
(b) Remaining property of the estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the estate in proportion to the value of their interests therein.

Ala. Code § 43-8-76
Order of abatement.
(a) Except as provided in subsection (b) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General devises;
(4) Specific devises.

For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the value of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.