A comprehensive guide to spousal inheritance rights and the legal concept of an elective share, designed to help surviving spouses understand their financial protections and legal options in estate administration.
When a spouse passes away, the surviving partner often faces a complex and emotional journey, made even more challenging by the intricacies of estate and inheritance law. While many assume that a surviving spouse will automatically inherit everything, this is not always the case, especially if the deceased had a will or other estate planning documents. This is where the concept of the “elective share” becomes a critical protection. This guide will explore what the elective share is, how it works, and why it is a vital component of a surviving spouse’s legal rights.
An elective share, also known as a forced share or statutory share, is a legal right that allows a surviving spouse to claim a portion of their deceased spouse’s estate, regardless of what the will stipulates. The primary purpose of this legal provision is to prevent a deceased spouse from completely disinheriting their surviving partner and to ensure the surviving spouse is not left without financial support.
This modern legal concept evolved from the English common law traditions of dower and curtesy, which were designed to prevent widows and widowers from falling into poverty. In the United States, elective share laws vary significantly from state to state, but they share the common goal of providing financial security for a surviving spouse.
In most states, the elective share is typically between one-third and one-half of the deceased spouse’s estate. However, the exact percentage can depend on factors like the length of the marriage, the presence of minor children, and the surviving spouse’s independent wealth.
Simply put, the elective share is a percentage of the decedent’s estate. However, the calculation can be more complex than it appears, as it often involves what is known as the “augmented estate”. The augmented estate is a legal mechanism that combines the value of the probate estate with other assets that typically pass outside of probate, such as property in a revocable trust, pay-on-death accounts, and gifts given away shortly before death.
The purpose of this calculation is twofold: first, it prevents the deceased spouse from circumventing the elective share law by transferring assets through non-probate means before their death. Second, it prevents a surviving spouse from taking an excessively large share if the deceased had already transferred substantial assets to them.
It is crucial to act quickly when considering an elective share claim. Most states have strict deadlines for filing a claim, and failing to meet this deadline can result in the loss of your right to the share.
The concept of the elective share is most common in “common law” states, where spouses are not automatically entitled to a half-share of all property acquired during the marriage. In these states, property ownership is determined by whose name is on the title or who purchased the asset. The elective share acts as a safeguard to ensure a spouse’s right to the estate.
In contrast, “community property” states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) operate under a different system. In these states, all assets and debts acquired during the marriage are considered to be owned equally by both spouses. When one spouse dies, the surviving spouse automatically owns half of the community property, regardless of what the will says.
Article Summary:
The elective share is a crucial legal concept designed to protect surviving spouses from disinheritance. It grants them the right to claim a fixed portion of the deceased spouse’s estate, overriding the terms of a will. The calculation of this share often involves a comprehensive look at the “augmented estate,” which includes assets that might otherwise pass outside of a will. State laws vary, with some following the elective share model and others using a community property system. A surviving spouse must take timely action to claim their elective share, as this right can be waived or lost if not asserted within a specific period.
What is the difference between an elective share and inheritance?
An inheritance is what you receive as a beneficiary under a will or through state intestacy laws if there is no will. An elective share is a specific legal right that allows a surviving spouse to “elect” to take a statutory portion of the estate instead of what they were left in the will.
Can a spouse be completely disinherited?
Generally, no. Most states have laws, such as the elective share, that prevent a spouse from being completely disinherited from the estate, ensuring they receive a fair portion of the property.
Does a surviving spouse automatically inherit everything?
It depends on the state and the nature of the property. In community property states, a surviving spouse automatically owns half of the community property. In common law states, a surviving spouse may not automatically inherit everything and may need to claim their elective share.
How do trusts affect an elective share claim?
In many jurisdictions, assets placed in a trust, even if they pass outside of probate, are included in the calculation of the augmented estate for the purpose of the elective share. This prevents the use of trusts to bypass a spouse’s rights.
Who is a Legal Expert for these matters?
Estate planning and probate legal experts are professionals who specialize in these areas of law. They can help assess the estate, negotiate with heirs, and ensure that all legal deadlines are met when pursuing a claim.
Disclaimer: This content is for informational purposes only and does not constitute legal advice. Estate law is complex and varies by jurisdiction. For specific legal guidance regarding your situation, please consult with a qualified legal expert.
Elective Share, Surviving Spouse, Inheritance, Disinheritance, Forced Share, Augmented Estate, Spousal Rights, Wills, Trusts, Probate, Estate.
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