Election Under the Will: What It Means for Surviving Spouses

Q: Can I change my mind after electing under the will?

Generally, once you make an election, it is binding, and changing it may not be possible.

Q: Do I need a lawyer to make this election?

While it is possible to handle it yourself, consulting a lawyer can help ensure that you understand all implications.

Definition & Meaning

Election under the will refers to a legal process where a surviving spouse chooses to accept the terms of a deceased partner's will rather than taking a share of the estate as dictated by intestate succession laws. This means that the surviving spouse can elect to receive a specified portion of the deceased's estate, which may be different from what is outlined in the will. By making this election, the surviving spouse generally forfeits any right to an intestate share of the estate, unless the will indicates that the provisions for the spouse are in addition to any intestate rights.

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Legal Use & context

This term is primarily used in probate law, which deals with the distribution of a deceased person's estate. It is particularly relevant in family law, where the rights of surviving spouses are often a focal point. Users may encounter this concept when navigating the probate process, and legal forms related to elections under wills can help facilitate this process. US Legal Forms offers templates that can assist individuals in making this election properly.

Key legal elements

Real-world examples

Here are a couple of examples of abatement:

(hypothetical example) A person passes away leaving a will that specifies their spouse will receive 30 percent of the estate. The surviving spouse may choose to elect to take this 30 percent instead of what they would receive under intestate laws, which might be more or less than that amount.

State-by-state differences

State	Election Rules
California	Surviving spouses can elect to take a statutory share of the community property.
New York	Surviving spouses have the right to elect a share of the estate, regardless of the will's provisions.
Texas	Election rights may differ based on whether the property is community or separate property.

This is not a complete list. State laws vary, and users should consult local rules for specific guidance.

Comparison with related terms

Term	Definition
Intestate Succession	The distribution of a deceased person's estate when there is no valid will.
Will Contest	A legal challenge to the validity of a will, often involving disputes over its terms.
Elective Share	A statutory right allowing a surviving spouse to claim a portion of the deceased spouse's estate, regardless of the will.

Common misunderstandings

What to do if this term applies to you

If you find yourself in a situation where you need to make an election under a will, consider the following steps:

Review the will carefully to understand your rights and the provisions made for you.
Consult with a legal professional to ensure you fully understand your options and the implications of your election.
Explore US Legal Forms for templates that can assist you in making your election properly.

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Quick facts

Typical election period: Varies by state, often within six months of the decedent's death.
Jurisdiction: Probate courts handle elections under wills.
Potential penalties: Loss of intestate share if election is made.

Key takeaways

Frequently asked questions

What happens if I do not make an election under the will?

If you do not make an election, you may be entitled to an intestate share, depending on state laws.