Also known as: spousal shares · spouse's share · spouses' share · elective share
Written by attorneys — see sources below.
A statutory or common-law entitlement of a surviving spouse to a fractional share of the decedent's estate or to designated property interests such as homestead or family allowances. The share arises by operation of law upon the decedent's death and is measured against the probate estate or an augmented estate that includes certain nonprobate transfers. It operates independently of any will or intestate distribution unless waived or forfeited by conduct such as a felonious killing.
Samantha Stone intentionally killed her husband and was convicted of the felony. When the estate was probated, the personal representative denied her any distribution. The court applied the forfeiture rule and treated the estate as though Samantha had disclaimed her interest, passing the property to the next takers under the intestacy statute.
Simone Sanders's late husband had accumulated substantial pension credits during their marriage under an ERISA plan. After his death, Simone asserted a community-property interest in the benefits that passed outside probate. The court held that her spousal share attached to the pension value as if the benefits had been part of the augmented estate subject to her election.
Isaac Boggs began working for South Central Bell in 1949 and remained employed until his retirement in 1985. He was married to Dorothy Boggs from 1949 until her death in 1979, and the couple had three sons. After Dorothy died, Isaac married Sandra Boggs in 1980, and they remained married until Isaac's death in 1989. Upon retirement, Isaac received a lump-sum distribution of $151,628.94 from the Bell System Savings Plan, which he rolled over into an Individual Retirement Account worth $180,778.05 at his death. He also received 96 shares of AT&T stock from the Bell South Employee Stock Ownership Plan and a monthly annuity of $1,777.67 from the Bell South Service Retirement Program. Dorothy's will bequeathed one-third of her estate to Isaac outright along with a lifetime usufruct in the remaining two-thirds, with naked ownership passing to the sons. A 1980 Louisiana judgment of possession ascribed to Dorothy's estate a community property interest in Isaac's Savings Plan account valued at $21,194.29. After Isaac's death, Sandra began receiving a survivor annuity and other benefits. The sons filed suit in Louisiana state court claiming a portion of the retirement benefits under Dorothy's will and Louisiana community property law. Sandra then filed a declaratory judgment action in the United States District Court for the Eastern District of Louisiana asserting that ERISA preempts the sons' claims. The District Court granted summary judgment against Sandra. The Fifth Circuit affirmed. The Supreme Court granted certiorari.
View caseYes. The surviving spouse receives a dower-type life interest measured as if the decedent had held fee simple absolute, but the interest remains subordinate to any outstanding future interests or powers of termination that limited the decedent's estate.
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An individual who feloniously and intentionally kills the decedent forfeits every benefit under the probate article, including the elective share, intestate share, homestead allowance, exempt property, and family allowance. The estate then passes as if the killer had disclaimed the interest.
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No. The allowances are payable in addition to any elective-share amount and are not charged against the fractional share the surviving spouse elects from the augmented estate.
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The elective share is applied to the augmented estate, which includes the probate estate plus specified nonprobate transfers such as revocable trusts, life insurance payable to others, and certain pension benefits that the decedent could have directed to the spouse.
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…at 851, n. 2 (opinion on rehearing) (same); Sims v. Sims , 358 So. 2d 919, 924 (La. 1978) (formula for calculating a former spouse's share of pension benefits); McClanahan § 12:15, pp. 547-550 (state courts may allocate entire pension to employee spouse and allocate to other spouse other community property equal in value to…