Also known as: elective share rights · elective-share right · elective share · right of election · spousal elective share
Written by attorneys · grounded in primary & secondary sources — see below
A statutory entitlement allowing a surviving spouse to claim a fractional share of the decedent's augmented estate. The right attaches upon the death of a spouse domiciled in the state and is subject to waiver by signed writing or forfeiture for felonious killing.
Eduardo and his spouse signed a one-page agreement during the marriage stating he would accept a lump-sum payment instead of any estate claim. After her death the personal representative asserted the document barred any further claim. The court enforced the signed writing as a valid waiver of the right.
Elena intentionally killed her husband and was convicted of the felony. She later sought an elective share of his estate. The probate court denied the claim because the killing caused forfeiture of all benefits including the elective share.
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Ewan transferred assets into a revocable trust shortly before death to reduce the probate estate. His surviving spouse Eileen petitioned for an elective share. The court included the trust assets in the augmented estate because the transfers were illusory and did not defeat the right.
Yes. A signed written agreement executed before or after marriage waives the right and is enforceable without consideration.
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Yes. The killer forfeits the elective share along with other estate benefits.
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No. The allowances are payable in addition to the elective share amount.
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Nonprobate transfers are excluded from the augmented estate when the petition is filed more than nine months after death.
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Yes. An agreement is unenforceable if the surviving spouse proves it was involuntary or the result of duress.
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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…