Also known as: elective share right · elective-share rights · elective share · spousal elective share · right of election
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 in lieu of taking under the will or by intestacy. The right may be waived only by a signed written agreement and is forfeited by a spouse who feloniously and intentionally kills the decedent.
Ewan Eckhart and his spouse signed a one-page agreement during the marriage in which Ewan accepted a lump-sum payment in place of any claim to the company or estate. After the spouse died, Ewan petitioned for an elective share. The court enforced the signed writing and denied the petition because the agreement satisfied the statutory requirements for waiver.
Ezra Eastman was convicted of feloniously and intentionally killing his spouse. He then sought an elective share of the augmented estate. The court held that the killing caused Ezra to forfeit all benefits under the probate code, including any elective share, and directed the estate to pass as if he had disclaimed his interest.
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Elena Estrada's spouse created a revocable inter vivos trust before their marriage and retained the power to revoke it until death. After the spouse died, Elena asserted an elective-share claim that included the trust principal. The court included the trust value in the augmented estate because the retained revocation power made the assets reachable by the surviving spouse's rights.
A surviving spouse may waive the right of election only by a written agreement signed by the spouse before or after marriage. The agreement is enforceable without consideration.
An individual who feloniously and intentionally kills the decedent forfeits all benefits under the probate code with respect to the decedent's estate, including the elective share.
The family allowance is not chargeable against any benefit passing to the surviving spouse by way of elective share. The allowances are payable in addition to the elective share.
An agreement is unenforceable if the surviving spouse proves it was involuntary or the result of duress. A credible threat of immediate reputational harm that leaves no reasonable alternative can render the waiver invalid.
…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…