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What is an Elective Share?

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  • Written By: Anna B. Smith
  • Edited By: Michelle Arevalo
  • Last Modified Date: 10 December 2016
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    Conjecture Corporation
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An elective share is the name of the probate law that allows a spouse to claim, as inheritance, an amount of his or her partner’s estate after death. This law may be enacted when a spouse wishes to take possession of an amount of the estate that is different from that listed in the deceased’s will. This law is particular to the United States, though other countries have similar provisions under different names.

Probate laws are those aspects of state legislation that exist for the protection and administration of estates. They govern both wills and trusts. The purpose of elective share is to protect surviving spouses from being eliminated from the inheritance left by a deceased spouse. An individual cannot legally block their spouse from receiving any portion of their estate, no matter the size, after their death.

When a spouse seeks to prevent his or her partner from receiving any part of the estate, it is known as disinheritance. This can happen in one of two ways — through distribution of the estate prior to death or through the fulfillment of a will. An individual could, when aware of the imminence of their own death, allocate their money and personal property to friends and relatives to prevent the spouse from receiving any portion of it. They also could make provisions in the will to divide the estate between members of the family and friends, rather than the spouse.

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Individuals wishing to claim an elective share must make their claim to the court responsible for administering the will within six months of the start of the proceedings. This claim may be made in person or in writing. The court charged with processing the will is typically determined by the state in which the deceased person lived. The party wishing to claim an elective share must initiate proceedings himself. The court is not legally required 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 portion of the estate that may be claimed by the surviving spouse varies from state to state. It is typically one-third of the estate — and one-half if children survive the deceased — after certain deductions are calculated. These deductions may be in the form of inheritance taxes paid to the United States federal government or portions of the estate liquidated to pay creditors.

Some states allow spouses to claim additional properties and finances than that which remains at the time of death of the decedent. They may also claim that the estate consisted of financial and land gifts the deceased made during the last few years of his life. These gifts are then included in the size of the estate, which is divided and distributed to the surviving spouse.

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