Also known as: spouse's elective share · elective share · elective shares · spousal share
Written by attorneys — see sources 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 share is calculated against both probate assets and specified nonprobate transfers. Amounts already received by the spouse from the estate are credited against the claim.
Skylar Sullivan intentionally kills her husband to accelerate inheritance. After conviction the personal representative denies her petition for an elective share. The court rules that the felonious killing causes forfeiture of every benefit including the elective share so the estate passes as if Skylar had disclaimed her interest.
Serena Soto dies intestate survived by her spouse Spencer Silver. Spencer petitions for an elective share of the augmented estate. The court grants the petition because a surviving spouse may elect against an intestate estate under the governing statute.
Kandi Ann Hall and Tyson Hall married on May 23, 2013. They had one minor child together. Kandi Hall had three adult children from a prior relationship, including Brianna McLaen. Kandi Hall died intestate on February 10, 2018. At the time of her death, Kandi Hall owned real property described as Lots 12 and 13 and the South 10 feet of Lot 14, Block 34, First Addition to the City of Forman, Sargent County, North Dakota. She initially acquired an undivided one-fourth interest in the property by a July 18, 2012 Personal Representative’s Deed of Distribution, with her three sisters holding the remaining interests. In 2013, Kandi Hall and her three sisters executed a warranty deed transferring their interests in the property to Kandi Hall and McLaen as joint tenants. Kandi Hall signed the deed as a single woman, and Tyson Hall did not sign the deed. Kandi Hall and Tyson Hall resided in a house on the property at the time of her death. In April 2018 Tyson Hall was appointed personal representative of Kandi Hall’s intestate estate. In June 2018 he petitioned for an elective share of the augmented estate, asserting that the 2013 warranty deed was void because the property was homestead and he had not joined in the conveyance. McLaen opposed the petition, arguing that the deed was valid and that Tyson Hall had already received more than his share. After a hearing the district court granted the petition, found the deed void, included the full value of the property in the augmented estate, and ordered McLaen to issue a quit claim deed transferring her interest to the estate’s personal representative. McLaen appealed the order. After Kandi Hall’s death McLaen paid $3,735.32 in overdue property taxes for 2015 through 2017 and $609.20 for property insurance on the real property. Tyson Hall conceded that the estate should reimburse the taxes but disputed reimbursement for the insurance.
View caseYes. The homestead allowance, exempt property, and family allowance are payable in addition to the elective-share amount and are not charged against it.
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The killer forfeits the elective share along with all other benefits under the probate article. The estate then passes as if the killer had disclaimed the interest.
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Yes. A signed written agreement before or after marriage waives the right of election when it uses language relinquishing all rights in the other spouse's property or estate.
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The value of any constitutional homestead right received by the surviving spouse is charged against the statutory homestead allowance to the extent the home would have been part of the estate but for the constitutional protection.
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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…