Right of Election: A Comprehensive Guide for Surviving Spouses

Definition & meaning

The right of election is a legal provision that allows a surviving spouse to choose between accepting what is offered to them in the deceased spouse's will or opting for a statutory share of the deceased's estate. This right ensures that the surviving spouse receives a minimum benefit from the wealth accumulated during the marriage, regardless of the will's provisions. The specific share varies by state law, with many states allowing the surviving spouse to claim a fixed portion of the probate estate, which is often one-third of the total estate value.

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Real-world examples

Here are a couple of examples of abatement:

Example 1: A spouse passes away, leaving a will that provides nothing to the surviving spouse. The surviving spouse can choose to exercise their right of election and claim one-third of the estate instead.

Example 2: A married couple has significant assets, and the deceased spouse's will leaves the surviving spouse a minimal amount. The surviving spouse can opt to take their elective share, ensuring they receive a fair portion of the estate. (hypothetical example)

State-by-state differences

State Elective Share Percentage
California One-third of the estate
New York One-third of the estate
Texas One-half of the 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 Difference
Elective Share A statutory right allowing a spouse to claim a portion of the estate. Specifically for surviving spouses.
Forced Heirship A legal requirement to leave a portion of the estate to certain heirs. Applies to heirs other than spouses.
Probate The legal process of validating a will. Involves the entire estate, not just the spouse's rights.

What to do if this term applies to you

If you are a surviving spouse and believe the right of election applies to your situation, consider the following steps:

  • Review the will to understand what has been left to you.
  • Consult with a legal professional to determine your options and the potential benefits of electing a share.
  • Explore US Legal Forms for templates that can assist you in filing for your elective share.

For complex situations, seeking professional legal assistance is advisable.

Quick facts

  • Typical elective share: One-third of the estate (varies by state).
  • Jurisdiction: State laws govern the right of election.
  • Potential penalties: May include loss of rights if not claimed within a specified timeframe.

Key takeaways

FAQs

The right of election is a legal option for a surviving spouse to choose a statutory share of the deceased spouse's estate instead of what is provided in the will.

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