Also known as: electing against the will · elected against the will · elects against the will · election against will · taking against the will · elective share · right of election
Written by attorneys — see sources below.
A statutory right allowing a surviving spouse to claim a fractional share of the decedent's augmented estate instead of accepting the provisions made in the decedent's will. The right may be waived only by a signed written agreement and is forfeited by a spouse who feloniously and intentionally kills the decedent.
Emmett Egan and his wife signed a one-page document during their marriage stating he would accept a lump-sum payment instead of any claim on her estate. After her death the personal representative invoked the document to bar his petition. The court enforced the signed writing and denied the claim.
Emma Erickson was convicted of intentionally killing her husband. She filed a petition claiming an elective share of his estate. The court held that the conviction caused her to forfeit every benefit including the elective share and directed distribution as if she had disclaimed.
Edgar Evers created a revocable trust transferring most of his assets shortly before death and left his wife only a small bequest in his will. After his death she petitioned for an elective share. The court examined whether the transfers were illusory and included the trust assets in the calculation of her statutory share.
Ferdinand Straus died on July 1, 1934, leaving a last will and testament dated May 5, 1934, which contained a provision for a trust for his wife for her life of one-third of the decedent’s property both real and personal. On June 28, 1934, three days before his death, he executed trust agreements by which, in form at least, he transferred to trustees all his real and personal property. The beneficiary named in the trust agreement brought this action to compel the trustees to carry out its terms. The widow challenged the validity of the transfer to the trustees. The trial court found that the trust agreements were made, executed and delivered by said Ferdinand Straus for the purpose of evading and circumventing the laws of the State of New York, and particularly sections 18 and 83 of the Decedent Estate Law. The trial court also found that the settlor reserved the enjoyment of the entire income as long as he should live, and a right to revoke the trust at his will, and in general the powers granted to the trustees were in terms made subject to the settlor’s control during his life.
View caseYes. The allowances are independent entitlements and are not charged against the elective-share amount.
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The petition must be filed within nine months after death. Filing later excludes nonprobate transfers even if the six-month post-probate period has not expired.
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Yes. The value of any constitutional homestead right the surviving spouse already holds must be charged against the statutory homestead allowance.
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Yes. A written agreement signed by the surviving spouse before or after marriage waives the right and is enforceable without consideration.
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Yes. The killer forfeits the elective share and all other benefits under the article governing spousal rights.
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…her or him in case of intestacy. That was changed by section 18 of the revised Decedent Estate Law. By that section “a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.” These limitations…