Elective Share: What It Means for Surviving Spouses

Q: How is the elective share calculated?

The elective share is typically a fixed percentage of the decedent&#039;s estate, minus the value of the surviving spouse&#039;s separate assets.

Q: Do I have to accept what is in the will?

No, as a surviving spouse, you have the option to elect for the elective share instead of accepting the will&#039;s provisions.

Q: What happens if the decedent was not domiciled in my state?

The right to an elective share may be governed by the laws of the decedent&#039;s domicile at the time of death.

Q: Can I handle the elective share process on my own?

While some may choose to manage the process independently, consulting a legal professional is advisable to ensure proper handling of the claim.

Definition & Meaning

An elective share is a legal provision that allows a surviving spouse to choose between accepting what is left to them in a deceased partner's will or opting for a predetermined portion of the deceased's estate. This option is designed to ensure that the surviving spouse receives a minimum level of financial support, reflecting the wealth accumulated during the marriage. The elective share amount can vary based on state laws, but it typically includes a fixed percentage of the decedent's probate estate, minus the value of the surviving spouse's separate assets.

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Legal Use & context

The concept of elective share is primarily used in family law, particularly in matters of estate planning and probate. It provides a legal mechanism for surviving spouses to claim a fair share of their deceased partner's estate, regardless of the will's provisions. This term is relevant in cases where there may be disputes over inheritance or when a spouse feels inadequately provided for. Users can manage the necessary legal forms through platforms like US Legal Forms, which offer templates drafted by attorneys to assist in these situations.

Key legal elements

The elective share amount is typically defined by state law.
Surviving spouses can choose between the elective share and what is provided in the will.
The elective share is often a fixed percentage of the decedent's estate, commonly one-third.
The separate estate of the surviving spouse is subtracted from the total estate when calculating the elective share.
State laws govern the rights of surviving spouses, especially if the decedent was not domiciled in the state at the time of death.

Real-world examples

Here are a couple of examples of abatement:

(hypothetical example) If a person passes away leaving a will that bequeaths all their assets to their children, but the surviving spouse believes they should receive more, they may elect to take their elective share instead. If the total estate is valued at $300,000 and the surviving spouse's separate estate is valued at $100,000, the elective share might be calculated as one-third of the remaining estate, which could result in a substantial benefit for the surviving spouse.

State-by-state differences

Examples of state differences (not exhaustive):

State	Elective Share Percentage	Additional Notes
California	One-half	Applicable if married for more than 10 years.
New York	One-third	Surviving spouse can elect against the will.
Texas	One-third	Elective share applies to community 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	Key Differences
Forced Heirship	A legal requirement that certain heirs receive a portion of the estate.	Elective share is specific to spouses, while forced heirship applies to children or other heirs.
Will Contest	A legal challenge to the validity of a will.	Elective share is a right to a portion of the estate, while a will contest disputes the will's terms.

Common misunderstandings

What to do if this term applies to you

If you are a surviving spouse and believe you may be entitled to an elective share, consider the following steps:

Review the decedent's will and estate documents to understand your options.
Consult with a legal professional to discuss your rights and the process for claiming an elective share.
Explore US Legal Forms for templates that can assist you in filing the necessary documentation.
If the situation is complex, seek professional legal advice to ensure your interests are protected.

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Quick facts

Typical elective share percentage: Varies by state, commonly one-third.
Jurisdiction: State law governs elective shares.
Potential fees: Legal fees for estate administration can apply.
Eligibility: Surviving spouse must be legally married to the decedent.
Timeframe: Elective share must typically be claimed within a certain period after death, often within six months.

Key takeaways

An elective share allows a surviving spouse to claim a portion of the deceased's estate, regardless of the will.
The amount of the elective share is determined by state law and can vary significantly.
Surviving spouses should review their rights and consider legal assistance to navigate the process.
Understanding the elective share can help ensure fair treatment in estate matters.
Users can find helpful legal templates through US Legal Forms to assist with claiming an elective share.

Frequently asked questions

What is the elective share?

The elective share is a legal right that allows a surviving spouse to claim a portion of the deceased spouse's estate, regardless of the will's provisions.