Also known as: spousal rights of election · spouse's right of election · spouses' right of election · elective share · right of election
Written by attorneys · grounded in primary & secondary sources — see below
A statutory entitlement allowing a surviving spouse to claim a fractional share of the decedent's augmented estate rather than accepting the provisions of the will or intestate succession. The right is subject to waiver only by signed written agreement and is forfeited by a spouse who feloniously and intentionally kills the decedent.
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Spencer Silver and Sasha Stone signed a one-page document during their marriage stating that Spencer would accept a lump-sum payment instead of any claim to Sasha's estate. After Sasha died, Spencer 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.
Simone Sanders was convicted of feloniously killing her husband Samantha Stone after tampering with the controls of their private plane. Simone petitioned for an elective share of Samantha's estate that included company stock devised to a sibling. The probate court denied the petition because the killing caused forfeiture of all benefits including the elective share.
Sarah Sullivan transferred most of her assets into revocable trusts shortly before her death, leaving her surviving spouse Sofia Stern only a small bequest under the will. Sofia petitioned to set aside the transfers as illusory and to enforce an elective share against the full value. The court examined whether the transfers were made in good faith or solely to defeat the surviving spouse's statutory right.
The right may be affirmed, modified, or waived only by a written agreement signed by the surviving spouse before or after marriage. The agreement is enforceable without consideration.
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An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent's estate, including the elective share. The estate then passes as if the killer had disclaimed the share.
…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 a right of election
…Thus, in the event of plaintiff's death during marriage to defendant, she waived even her right to a surviving
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The family allowance is not chargeable against any benefit or share passing to the surviving spouse by will, intestate succession, or elective share. The allowances operate independently of the elective-share amount.
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Nonprobate transfers are excluded from the augmented estate if the petition is filed more than nine months after death. The surviving spouse must also provide timely notice to affected recipients of nonprobate transfers.
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An agreement is not enforceable if the surviving spouse proves it was involuntary or the result of duress. Courts examine power imbalance, threats, opportunity for independent advice, and whether the threat left the spouse with no reasonable alternative.
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