A spousal elective share is a protective mechanism that allows a surviving spouse the right to “elect” against the will of their deceased spouse and request a minimum amount of the estate. This protects a surviving spouse if the will tries to disinherit them or only provide them with a small portion of the estate. The elective share serves to ensure that surviving spouse’s needs are provided for when their spouse dies, in a similar way that a spouse would provide alimony if the couple were to divorce.
Your state’s law establishes the elective share, so the percentage of the estate a surviving spouse may be entitled to can vary, although it is commonly about one-third. This percentage is a portion of the augmented estate, which includes the net probate estate, non-probate transfers to others (e.g., revocable trusts and pay-on-death / transfer-on-death accounts), as well as the surviving spouse’s own remaining assets.
The spousal elective share may be waived in a prenuptial or postnuptial agreement. This offers flexibility to allow either party coming into a second marriage to waive their spousal elective share from the other’s estate so they can leave a larger portion of property to their children of a prior relationship.
The state laws regarding spousal elective share are complex, and require that you take quick action. If you feel you have been unintentionally or wrongfully excluded from a will, it is important that you contact an attorney as soon as possible to discuss your situation.