Also known as: put a spouse to an election · spouse put to election · putting spouse to election · election · widow's election · probate election
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine requiring a surviving spouse to choose between taking the benefits provided in the deceased spouse's will and claiming statutory rights such as an elective share or community property interest.
Philip Powell's will leaves his wife Pearl only a life estate in their home. The will states that accepting this provision bars any claim to her community property share. Pearl must decide whether to take the life estate or assert her full community property rights instead.
Pierre Poulin's will devises his entire estate to charity. It expressly puts his surviving spouse Paige to an election. Paige must choose the elective share or the will's charitable bequest, but she cannot take both.
Parker Phillips and his wife signed a written agreement before marriage waiving her right of election. After his death the will leaves her nothing. The agreement prevents her from claiming the elective share because she validly waived the election right.
Select any source to read its text and confirm it supports the definition.
Paul Peterson's will conditions his wife's inheritance on her voting shares in a certain way at the next corporate election. Accepting the bequest forces her to follow the will's voting instructions rather than exercising independent shareholder rights.
Pearl Porter's will gives her husband a substantial bequest only if he elects to forgo his statutory share. He initially accepts the bequest but later seeks to avoid the election. The will's terms make the choice binding once manifested.
Paige Porter's will requires her surviving spouse to elect between a cash legacy and the value of damaged marital property. Accepting the legacy bars any separate claim for the property's diminished value under tort principles.
The surviving spouse must choose between accepting the benefits provided in the will and claiming statutory rights such as an elective share or community property interest. The will expressly forces this choice.
Supporting sources
The will may force the spouse to decide whether to take under the will or assert full community property ownership instead of the will's more limited provisions.
Supporting sources
Yes. A written agreement signed by the surviving spouse before or after marriage can affirm, modify, or waive the right of election. The agreement is enforceable without consideration.
…discrimination will not be set aside if any state of facts reasonably may be conceived to justify it,” and McDonald v. Board of Election , 394 U. S. 802, 809 (1969), in which the Court, again speaking through Mr. Chief Justice Warren, said that “[l]egislatures are presumed to have acted constitutionally even if source…