Also known as: rights of election · election right
Written by attorneys · grounded in primary & secondary sources — see below
A statutory right of a surviving spouse to elect a forced share of the decedent's augmented estate in lieu of the share provided by will or intestacy. The share equals fifty percent of the marital-property portion of the augmented estate. Exercise of the right leaves the spouse's homestead allowance, exempt property, and family allowance unaffected and payable in addition.
Robert Rivera died domiciled in the state leaving an augmented estate valued at two million dollars. His will left his surviving spouse Ruby Rivera only a life estate in the marital home. Ruby filed a petition electing her statutory share. The court awarded her fifty percent of the marital-property portion of the augmented estate.
After Roger Ramirez died, his surviving spouse Rita Russell elected her share of the augmented estate. The personal representative argued that her homestead allowance should reduce the elective-share amount. The court held that the homestead allowance, exempt property, and family allowance remained payable in full and in addition to the elective share.
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Before marrying, Renee Rogers and Ralph Richardson signed a written agreement waiving any right of election. After Ralph's death Renee sought to set the waiver aside. The court enforced the signed writing and denied the election because the statute permits waiver by written agreement enforceable without consideration.
Days before his death Riverstone Manufacturing's founder transferred all assets into a revocable trust. His surviving spouse Ruby Rivera elected against the will. The court set aside the transfers as illusory and included the assets in the augmented estate subject to her elective share.
After Paul died, his surviving spouse Paula was incapacitated. Her conservator filed a petition exercising the right of election on her behalf. The court confirmed that the election was timely and valid under the statute authorizing a conservator to act for a living surviving spouse.
The augmented estate includes the decedent's net probate estate plus specified nonprobate transfers. The surviving spouse receives fifty percent of the marital-property portion of that augmented estate.
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No. When the surviving spouse exercises the right of election the homestead allowance, exempt property, and family allowance are paid in addition to the elective-share amount and are not charged against it.
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Yes. The right may be waived only by a written agreement signed by the surviving spouse. The agreement is enforceable without consideration provided it meets statutory formalities.
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No. Courts treat transfers to a revocable trust made to defeat the spouse's rights as illusory and include the assets in the augmented estate subject to the election.
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…of her rights against the defendant. [^maj-10]: Attention is called to the following rejected compensation bills abolishing the right of election after accident: 1915 Session, House Bills No. 206, 302, Journal, pp. 720, 1021; 1917 Session, House Bills No. 319, 485, Journal, pp. 567, 568; 1919 Session, House Bill No. 134, Journal, p.…