Elective share

What it means

An elective share is a protection, not a gift. A spouse who is left out, or left very little, can elect against the will and take the statutory share instead.

What the share is measured against varies a great deal: some states apply it to the probate estate only, others to an augmented estate that pulls back non-probate transfers and lifetime gifts.

It has to be claimed, usually within a short period after the will is admitted or letters are issued.

Why it matters

It is the clearest limit on what a will can do, and it defeats the common assumption that a spouse can be disinherited by a document.

It is also a deadline that runs quietly. A surviving spouse who is grieving and not receiving legal advice can lose the right by waiting.

When you are likely to meet it

• When a will leaves a surviving spouse little or nothing.
• When most of the estate passed outside the will.
• When a second marriage and children from a first marriage are both involved.

How this varies by state

Whether a state has an elective share, what it is measured against, how large it is, and how long a spouse has to claim it are all set by state law and differ substantially.

Related terms

• Augmented estateA wider pot than the probate estate, used to work out what a surviving spouse may claim.
• Community propertyIn some states, most of what a married couple acquires during the marriage belongs to both of them equally, whatever the paperwork says.
• Domestic partnerA legally registered relationship short of marriage. Whether it carries inheritance rights depends entirely on the state.
• EstateEverything the person owned at the moment they died, treated as one thing that has to be settled.
• Family allowanceMoney a court may allow a surviving spouse and dependent children to draw from the estate while it is being settled, ahead of most creditors.
• Homestead exemptionA protection for the family home — from creditors, from being sold to pay debts, or as a right for the surviving spouse to keep living there.
• IntestateDying without a valid will, so the estate passes by the state's own rules rather than by anybody's wishes.
• PortabilityA surviving spouse's right to use whatever federal estate tax exclusion their spouse did not — but only if it is claimed.
• Pretermitted heirA child left out of a will who was born or adopted after it was signed, and who may inherit anyway.
• Probate courtThe court that supervises estates. In many states it is a division of a general trial court and goes by another name.
• Separate propertyIn a community property state, what belongs to one spouse alone — usually what they brought into the marriage, and what they inherited or were given.
• WillA written document saying who should receive what, and who should be in charge of seeing that it happens.
• StepchildA partner's child you did not adopt. Generally not a descendant for inheritance, however they were raised.
• Marital propertyProperty treated as belonging to the marriage rather than to either spouse alone.
• Postnuptial agreementThe same kind of agreement, made by a couple who are already married.
• Prenuptial agreementA written agreement signed before a marriage that changes some of the financial and property rules the marriage would otherwise bring with it.
• Pretermitted spouseSomeone who married after their partner made a will, and who some states give a share of the estate anyway.

Sahvelo guidance that uses this

• The will
• When there is no will