Also known as: electing against will · elect against the will · election against the will · elective share · taking against the will
Written by attorneys · grounded in primary & secondary sources — see below
A statutory right of a surviving spouse to claim a fractional share of the decedent's augmented estate instead of accepting the provisions of the will. The election operates by overriding inconsistent testamentary gifts while preserving independent entitlements such as homestead and family allowances. The share is calculated against both probate assets and specified nonprobate transfers and is subject to waiver, timeliness rules, and forfeiture for felonious killing.
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After Edgar intentionally kills his wife Eva, he petitions the probate court for an elective share of her augmented estate that includes the family home and investment accounts. The court determines that the killing was felonious and intentional. Edgar therefore receives nothing under the election statute, and the estate passes as though he had disclaimed any interest.
Jean Bongaards held substantial property in a revocable trust that passed outside probate to third parties. After her death her surviving spouse filed an election claiming that the trust assets formed part of her estate for purposes of calculating his statutory share. The court examined whether the trust property counted toward the augmented estate and ruled that it did not, so the spouse's election applied only to the probate assets.
Yes. The allowances are independent entitlements and are not charged against the elective-share amount. A spouse may therefore receive both the fractional share of the augmented estate and the fixed allowances without reduction of one by the other.
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The election is barred. Under the UPC the surviving spouse must file within nine months after the decedent's death. Failure to meet that deadline prevents any claim to the augmented estate.
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A signed written agreement waiving all rights in the other spouse's estate is enforceable without consideration. Lack of full financial disclosure or independent counsel may support an equitable challenge, but the statute focuses on the existence of the signed writing.
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Testate or intestate transfers to the spouse and certain nonprobate transfers are applied against the elective share. Prior cash settlements and buyouts affect the augmented-estate calculation separately under the marital-property inclusion rules.
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Yes. The court determines slayer status in a civil proceeding under the preponderance standard. A final criminal conviction conclusively establishes the bar, but the absence of a conviction on the killing itself requires independent civil proof.
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