Also known as:spouse's election · election by spouse · putting spouse to election · surviving spouse election · right of election
Written by attorneys · grounded in primary & secondary sources — see below
A conditional testamentary gift in community-property jurisdictions that requires the surviving spouse to choose between accepting the gift under the will and retaining community-property rights in assets left to third parties.
Sources & Authorities
How it applies
Common Examples
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Conditional Gift of Separate Property
Simon Stern dies domiciled in a community-property state. His will devises his separate property to his children from a prior marriage but conditions a bequest of his share of community assets on Sylvia Santos electing to take under the will rather than asserting her community-property rights. Sylvia must decide whether to accept the conditioned gift or retain her community interest. The court treats the devise as a valid conditional gift and enforces the election requirement.
Election Between Homestead and Gift
Sebastian Santos dies leaving his interest in the family home to his adult children while conditioning a cash bequest on Sean Steele electing to accept the gift instead of claiming homestead rights. Sean files an election to take the cash bequest. The court enforces the election and denies the homestead claim because the will required relinquishment of all community and homestead rights as a condition of the gift.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Course Outlines
Sylvia Santos and Samuel Soto sign a written post-marital agreement in which Sylvia waives any right to elect against Samuel's will. After Samuel dies, Sylvia attempts to claim community-property interests in assets left to his children. The court enforces the signed waiver because it satisfies the formal requirements for relinquishing election rights.
Invalid Transfer to Avoid Election
Scott Summers transfers substantial community assets to his children shortly before death in an attempt to defeat any election by his surviving spouse. The surviving spouse petitions to set aside the transfers as illusory. The court examines whether the transfers were made to avoid the election requirement and restores the assets to the augmented community estate for purposes of the spouse's choice.
Common questions
Frequently Asked
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How does putting a spouse to an election differ from a statutory elective share?+
Putting a spouse to an election is a conditional-gift device used in community-property states. The decedent conditions a testamentary gift on the surviving spouse surrendering community-property rights in assets left to others. In contrast, an elective share is a statutory right available in non-community-property states that allows the surviving spouse to claim a fractional share of the augmented estate regardless of the will's terms.
Supporting sources
Can a surviving spouse waive the right to an election?+
Yes. A surviving spouse may waive the right of election only by a written agreement signed before or after marriage. The agreement is enforceable without consideration, though it may be challenged if the spouse proves it was involuntary, the product of duress, or lacked required financial disclosure.
What happens if the surviving spouse elects to take under the will?+
The spouse receives the conditioned gift but relinquishes community-property claims to assets devised to third parties. The election operates as acceptance of the decedent's overall disposition scheme rather than an independent statutory share.
Supporting sources
9 N.E.2d 966 (N.Y. 1937)Wills Trusts and Estates
…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 survivingspouse 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…