Also known as: elective share · elective shares · right of election · spousal elective share
Written by attorneys — see sources below.
A statutory right allowing a surviving spouse to claim a fractional share of the decedent's augmented estate in place of any lesser provision made by will or other disposition. The right attaches upon the decedent's death and is calculated against both probate assets and specified nonprobate transfers made during marriage. A spouse may waive the right only through a signed written agreement enforceable without consideration.
Esme Ellington and her husband signed a one-page document during their marriage stating she would accept a lump-sum payment instead of any claim to his business or estate. After his death the personal representative asserted the writing barred her petition. The court enforced the signed agreement as a valid waiver of the elective share.
Emanuel Escobar was convicted of feloniously killing his wife. He then sought to claim an elective share of her estate under her will. The probate court denied the claim because the killing caused forfeiture of all benefits including the elective share.
Elena Estrada's husband transferred most of his assets into revocable trusts shortly before death leaving her only a small bequest. After his death she petitioned for an elective share. The court included the trust assets in the augmented estate because the transfers were found illusory and subject to her claim.
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. A written agreement signed by the surviving spouse before or after marriage waives the right and is enforceable without consideration under the governing statute.
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Yes. An individual who feloniously and intentionally kills the decedent forfeits the elective share along with all other benefits under the probate code article governing estates.
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No. The family allowance and related allowances are payable in addition to the elective share and are not charged against it.
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The calculation reaches the decedent's probate estate plus specified nonprobate transfers made during marriage that benefit persons other than the surviving spouse.
…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…