Also known as: elective share fraction · elective-share fractions · elective share
Written by attorneys · grounded in primary & secondary sources — see below
The fractional portion of the augmented estate to which a surviving spouse is entitled under elective-share statutes. The fraction is applied to the sum of the probate estate and specified nonprobate assets. The resulting amount is then reduced by amounts already passing to the spouse by will, intestacy, or will substitutes.
Emma Erickson intentionally kills her husband Edward Everett. After his death the personal representative calculates the augmented estate and determines that Emma would otherwise be entitled to one-half of the marital-property portion. Because of the killing Emma receives nothing from the estate. The elective-share fraction is forfeited entirely and the assets pass as though she had disclaimed any interest.
Elise Everly's husband dies leaving most of his estate to their adult children. Elise petitions for her elective share. The court applies the elective-share fraction to the augmented estate that includes both probate assets and certain nonprobate transfers. After crediting amounts already received by Elise the court awards her the remaining fractional entitlement from the estate.
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The surviving spouse receives fifty percent of the marital-property portion of the augmented estate. The fraction is applied after the personal representative identifies and values all includible assets. Amounts already received by the spouse offset the final award.
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A signed written agreement waiving all rights in the property or estate of the other spouse eliminates the right to claim any fraction of the augmented estate. The waiver must meet statutory formalities. Without such an agreement the surviving spouse may still elect the fractional share.
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No. The allowances are payable in addition to the elective-share amount. The statute expressly provides that they are not charged against the fractional entitlement. The surviving spouse therefore receives both the fixed allowances and the calculated fraction.
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The killer forfeits the entire elective-share fraction along with all other benefits from the estate. The assets are distributed as though the killer had disclaimed the share. A civil finding of felonious and intentional killing is sufficient to trigger the forfeiture.
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…Thus, in the event of plaintiff's death during marriage to defendant, she waived even her right to a surviving spouse's elective share of the augmented estate under N.J.S.A. 3B:8-1. We note that under the agreement, only the entry of "a Final Judgment of Divorce" triggers the obligation to pay the $500,000 to…