Also known as: statutory forced shares · forced share · statutory share · elective share
Written by attorneys · grounded in primary & secondary sources — see below
A statutory entitlement that permits a surviving spouse to claim a fixed portion of the decedent's estate even when the will provides otherwise. The claim overrides inconsistent testamentary dispositions and reaches certain nonprobate transfers included in an augmented estate. The right is subject to waiver by written agreement and is forfeited upon a felonious and intentional killing of the decedent.
Simon intentionally kills his wife Sofia and is convicted of her murder. Sofia's will leaves her entire estate to their children. Simon petitions for a statutory forced share. The court denies the petition because the killing causes forfeiture of every benefit under the probate code, including the forced share, and the estate passes as if Simon had disclaimed any interest.
Santiago dies leaving a will that devises his business assets to his adult children and only a life estate in the marital home to his wife Sylvia. Sylvia files a timely petition claiming her statutory forced share of the augmented estate. The court grants the claim, awarding Sylvia a fractional interest calculated under the governing statute and treating the life estate as an offset against the amount due.
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Yes. The allowances are independent entitlements and are not charged against the elective share amount. A spouse may receive both the fractional share of the augmented estate and the fixed allowances without reduction of one by the other.
A signed written agreement waiving all rights in the property or estate of the other spouse constitutes a valid waiver of the forced share unless the agreement provides otherwise. Courts may still examine whether full financial disclosure occurred, but the statute requires only the signed writing.
The petition must be filed within nine months after death or six months after probate, whichever is later. Filing more than nine months after death excludes nonprobate transfers from the augmented estate even if the later six-month period is satisfied.
Yes. An individual who feloniously and intentionally kills the decedent forfeits every benefit under the probate article, including the elective or forced share. The estate then passes as if the killer had disclaimed the interest.
…that, whether or not Ernest G. Sullivan established the inter vivas trust in order to defeat his wife’s right to take her statutory share in the assets placed in the trust and even though he had a general power of appointment over the trust assets, Mary A. Sullivan obtained no right to share in the assets of that trust when…