Elective share
Encyclopedia
An elective share is a term used in American
law relating to inheritance
, which describes a proportion of an estate
which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will
. It may also be called a widow's share, statutory share, election against the will, or forced share.
common law
concepts of dower
and curtesy
, both of which reserved certain portions of a decedent's estate which were reserved for the surviving spouse, in order to prevent them from falling into poverty and becoming a burden on the community.
Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between ⅓ and ½ of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor
children. Some states also reduce the elective share if the surviving spouse is independently wealthy.
In some jurisdictions, if the spouse claims the elective share, they get that amount, but nothing else from the estate. In other states, claiming an elective share has no effect on gifts under a will or through a trust (though things given by will or trust may fulfill in part the elective share portion). Obviously, there would be no point in seeking an elective share if the surviving spouse has already been willed more than they would receive under the statute. Furthermore, some assets held by the estate may be exempt from becoming part of the elective share, so their value is subtracted from the total value of the estate before the elective share is calculated.
Some states also permit children of the deceased to claim an elective share.
away assets before death, or by tying up assets in devices such as trusts or joint account
s that benefit third parties after the decedent's death. Second, it prevents the surviving spouse from taking too large of an elective share, if the decedent had already transferred substantial assets to the spouse.
In order to accomplish this, the augmented estate is calculated by combining the value of the probate estate with such things as the value of gifts given by the decedent to third parties, property or accounts held in survivorship estates (such as a joint bank account, the proceeds of which would pass to the survivor among the account holders), the value of life insurance policies over which the decedent had the power to name the beneficiary, as well as gifts to the surviving spouse, and property held jointly with the surviving spouse.
The elective share in Florida gives a surviving spouse 30% of the elective estate, which includes all property owned by the decedent, property given away within one year of death, property inside a revocable trust (also known as a Living Trust), and pay on death accounts.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law relating to inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
, which describes a proportion of an estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
. It may also be called a widow's share, statutory share, election against the will, or forced share.
Function and operation
The elective share is the modern version of the EnglishEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
concepts of dower
Dower
Dower or morning gift was a provision accorded by law to a wife for her support in the event that she should survive her husband...
and curtesy
Curtesy
Curtesy tenure is the legal term denoting the life interest which a widower may claim in the lands of his deceased wife, under certain conditions...
, both of which reserved certain portions of a decedent's estate which were reserved for the surviving spouse, in order to prevent them from falling into poverty and becoming a burden on the community.
Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between ⅓ and ½ of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
children. Some states also reduce the elective share if the surviving spouse is independently wealthy.
In some jurisdictions, if the spouse claims the elective share, they get that amount, but nothing else from the estate. In other states, claiming an elective share has no effect on gifts under a will or through a trust (though things given by will or trust may fulfill in part the elective share portion). Obviously, there would be no point in seeking an elective share if the surviving spouse has already been willed more than they would receive under the statute. Furthermore, some assets held by the estate may be exempt from becoming part of the elective share, so their value is subtracted from the total value of the estate before the elective share is calculated.
Some states also permit children of the deceased to claim an elective share.
Calculation of the augmented estate
The elective share is usually calculated from assets beyond those in the probate estate alone, and the assets that are added together to make this calculation are referred to as an augmented estate. This calculation serves two functions. First, it prevents the decedent from effectively disinheriting the surviving spouse by either giftingGift (law)
A gift, in the law of property, is the voluntary transfer of property from one person to another without full valuable consideration...
away assets before death, or by tying up assets in devices such as trusts or joint account
Joint account
Joint account is a bank account shared by two or more individuals. Any individual who is a member of the joint account can withdraw from the account and deposit to it. Usually, joint accounts are shared between close relatives or business partners....
s that benefit third parties after the decedent's death. Second, it prevents the surviving spouse from taking too large of an elective share, if the decedent had already transferred substantial assets to the spouse.
In order to accomplish this, the augmented estate is calculated by combining the value of the probate estate with such things as the value of gifts given by the decedent to third parties, property or accounts held in survivorship estates (such as a joint bank account, the proceeds of which would pass to the survivor among the account holders), the value of life insurance policies over which the decedent had the power to name the beneficiary, as well as gifts to the surviving spouse, and property held jointly with the surviving spouse.
The elective share in Florida gives a surviving spouse 30% of the elective estate, which includes all property owned by the decedent, property given away within one year of death, property inside a revocable trust (also known as a Living Trust), and pay on death accounts.