Also known as: spousal elections · spouse election · 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.
Select any source to read its text and confirm it supports the definition.
Sebastian Santos and his wife Sasha Stone signed a one-page agreement during their marriage in which Sebastian accepted a lump-sum payment in lieu of any claim to Sasha's estate. After Sasha died, Sebastian filed a petition for an elective share. The court enforced the signed writing and denied the petition because the agreement satisfied the statutory requirements for waiver.
Simon Stern was convicted of feloniously and intentionally killing his wife Simone Sanders. Simon petitioned the probate court for an elective share of Simone's estate. The court denied the petition because the statute bars any person who feloniously and intentionally kills the decedent from receiving an elective share or any other benefit from the estate.
Samuel Soto transferred most of his assets into revocable trusts shortly before his death, leaving little in his probate estate for his surviving spouse Sasha Stone. Sasha petitioned for an elective share. The court examined the substance of the transfers and included the trust assets in the augmented estate available for the elective share calculation.
Yes. The allowances are independent entitlements and are not charged against the elective share amount. A surviving spouse may therefore obtain both the fractional share of the augmented estate and the fixed allowances without reduction of one by the other.
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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…
…her as a “slight token” of his affection and admiration. The legislation complained of, giving a testator’s surviving spouse
…Hall’s petition for an elective share of Kandi Hall’s augmented estate. The court found Tyson Hall, as surviving
…when he took an interest in a mine. Even then, the employer was not bound to charge him as a trustee. At the utmost, it had a right of election
The petition must be filed within nine months after the date of death or within six months after probate, whichever period expires later. Filing more than nine months after death excludes nonprobate transfers from the augmented estate even if the later six-month period is met.
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The statute requires only a signed writing by the surviving spouse and states that the agreement is enforceable without consideration. Courts may still examine fairness factors such as disclosure when the surviving spouse challenges enforceability on grounds of duress or involuntariness.
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Yes. The statute provides that such a killer forfeits every benefit under the article, expressly including an elective share. The estate then passes as if the killer had disclaimed the share.
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Yes. Unless the agreement provides otherwise, a complete property settlement entered into after or in anticipation of separation or divorce constitutes a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance.
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