Also known as: spousal shares · spouse's share · spouses' share · elective share
Written by attorneys · grounded in primary & secondary sources — see 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.
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Yes. 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…