Elective share is a US probate law that allows a spouse to claim a portion of their partner’s estate after death. Disinheritance can occur through the distribution of the estate before death or in a will. The surviving spouse must initiate the proceedings and can claim up to half of the estate if children survive. Deductions are made for taxes and creditors. Some states allow spouses to claim additional property and finances beyond those left at the time of death.
An elective share is the name of the probate law that allows a spouse to claim, as an inheritance, an amount of his or her partner’s estate after death. This law may be enacted when a spouse wishes to possess a different amount of estate than that stated in the deceased’s will. This law is specific to the United States, although other countries have similar provisions under different names.
Probate laws are those aspects of state law that exist for the protection and administration of estates. They govern both wills and trusts. The purpose of the elective share is to protect surviving spouses from being disqualified by the estate left by the deceased spouse. An individual cannot legally prevent his spouse from receiving any portion of his estate, regardless of size, after his or her death.
When a spouse tries to prevent his or her partner from receiving any portion of the estate, this is called disinheritance. This can happen in two ways: through the distribution of the estate before death or through the fulfillment of a will. An individual could, when aware of the imminence of their death, give their money and personal possessions to friends and relatives to prevent their spouse from receiving a share. They may also make provisions in the will to divide the estate among family members and friends, rather than the spouse.
Individuals wishing to apply for an elective share must submit their application to the court having jurisdiction to administer the will within six months of the commencement of the proceeding. This request can be made in person or in writing. The court charged with making the will is typically determined by the state in which the deceased person lived. The party wishing to claim an elective share must initiate the proceedings himself. The court is not legally obligated to investigate whether a will should be subject to this probate law, unless a specific request is made by the surviving spouse.
The size of the estate that a surviving spouse can claim varies from state to state. It is typically a third of the estate – and half if the children survive the deceased – after certain deductions have been calculated. These deductions can be in the form of estate taxes paid to the US federal government or portions of the estate liquidated to pay off creditors.
Some states allow spouses to claim additional property and finances beyond those left at the time of the deceased’s death. They may also state that the estate consisted of financial and land donations made by the deceased in the last years of his life. These gifts are then included in the estate, which is divided and distributed to the surviving spouse.
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