Also known as: forced share · elective share
Written by attorneys · grounded in primary & secondary sources — see below
An interest in a decedent's estate that a surviving spouse may elect to receive in lieu of taking under the will. The interest is calculated as a statutory fraction of the augmented estate and is subject to waiver, timing requirements, and offsets for amounts already received.
Francois Fortier feloniously and intentionally kills his spouse. After the spouse's death, Francois petitions the probate court for a forced share of the augmented estate. The court denies the petition because the killing causes Francois to forfeit every benefit under the probate code, including the forced share. The estate therefore passes as though Francois had disclaimed any interest.
Fatima Flores dies domiciled in State A owning substantial movables located in State B. Her surviving spouse Felicity French elects a forced share. The court applies the law of State A to determine the amount of the forced share in the movables because the decedent's domicile at death controls the surviving spouse's interest in personal property.
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No. An individual who feloniously and intentionally kills the decedent forfeits every benefit with respect to the decedent's estate, including the forced share. The estate passes as if the killer had disclaimed the interest.
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The law of the state where the decedent was domiciled at death governs the surviving spouse's forced share in movables. Courts of that state ordinarily apply their own local law to the question.
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Yes. A written agreement signed by the surviving spouse before or after marriage that waives all rights in the property or estate of the other spouse is enforceable and constitutes a waiver of the forced share unless the agreement provides otherwise.
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Yes. The petition must be filed within nine months after death or six months after probate, whichever is later. Filing more than nine months after death excludes nonprobate transfers from the augmented estate for purposes of computing the forced share.
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…Opinion of the Court by Tufte, Justice. [¶1] Brianna McLaen appeals from an order granting Tyson Hall’s petition for an elective share of the Estate of Kandi Ann Hall. McLaen argues the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate and by deciding a warranty…