Also known as: elective share amount · elective-share amounts · elective share · spousal elective share
Written by attorneys · grounded in primary & secondary sources — see below
The statutory amount to which a surviving spouse is entitled upon electing against the decedent's will or other disposition. The amount equals fifty percent of the value of the marital-property portion of the augmented estate, with a possible supplemental payment to reach a statutory floor when the base calculation falls short.
Emma Erickson intentionally kills her husband to accelerate inheritance. She later petitions the probate court for an elective-share amount from his augmented estate. The court denies the petition because the killing causes forfeiture of all benefits under the elective-share provisions, treating the share as disclaimed.
Evelyn Ellison's husband dies domiciled in the state, leaving an augmented estate whose marital-property portion yields an elective-share calculation below the statutory floor. She files a timely petition. The court awards the base amount plus a supplemental payment drawn from the probate estate and nonprobate recipients to reach the required minimum.
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A signed written agreement waiving all rights in the property or estate of the other spouse operates as a waiver of the elective-share amount unless the agreement provides otherwise. Courts examine whether the waiver was knowing and voluntary, including whether full financial disclosure occurred.
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These allowances are payable in addition to the elective-share amount and are not charged against it. The surviving spouse may receive both the fractional share of the augmented estate and the fixed allowances without reduction of one by the other.
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Nonprobate transfers are excluded from the augmented estate used to compute the elective-share amount. The petition may still proceed as to probate assets if filed within the later of nine months after death or six months after probate, but the augmented estate calculation is limited accordingly.
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The value of any constitutional homestead interest already held by the surviving spouse is charged against the statutory homestead allowance. The court reduces the allowance payable from other estate assets by the value of that interest.
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…property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts. [¶10] Nothing in the plain language of the statute limits the right of election to testate cases where there is a will. Section 30.1-05-01, N.D.C.C., is based on Uniform Probate Code §…