A spousal election, also known as an elective share, grants a surviving spouse the right to claim a portion of their deceased spouse’s estate, even if they were not explicitly named in the will. This legal provision ensures that spouses are protected from being disinherited or receiving an inadequate share of their partner’s assets.
How Does a Spousal Election Work?
When a person dies and leaves behind a surviving spouse, the terms of their will dictate how their assets are distributed. However, if the will allocates a smaller portion to the surviving spouse than they believe is fair, they have the option to make a spousal election.
Who Is Eligible to Make a Spousal Election?
In most jurisdictions, only legally married spouses are eligible to make a spousal election. This right typically applies regardless of whether the marriage was long or short-term. Domestic partners or unmarried couples generally do not have this legal recourse.
What Percentage of the Estate Can a Spouse Elect?
The amount a spouse can elect varies by state but is often set at one-third to one-half of the deceased spouse’s estate. For example, if a spouse’s estate is valued at $1 million and the spousal election percentage is one-third, the surviving spouse could claim up to $333,000.
Are There Any Time Limits for Making a Spousal Election?
Yes, there are strict time limits for making a spousal election. These deadlines vary by state but are usually within six months to one year of the deceased spouse’s passing. It’s crucial to consult with an experienced probate attorney as soon as possible after a loss to understand the specific timelines and requirements in your jurisdiction.
What Happens If a Spouse Makes a Spousal Election?
If a surviving spouse chooses to exercise their spousal election, the assets allocated in the will are adjusted accordingly. The estate executor is responsible for fulfilling the spousal election claim alongside any other bequests outlined in the will.
Can a Prenuptial Agreement Affect a Spousal Election?
Prenuptial agreements can significantly impact a spousal election. These contracts often specify how assets will be divided in the event of divorce or death. If a prenuptial agreement waives the right to an elective share, the surviving spouse may not be eligible to make a claim.
A few years ago, I represented a woman whose husband passed away unexpectedly. His will left a substantial portion of his estate to his children from a previous marriage. My client was understandably distraught and felt that the will did not adequately reflect her contributions to their shared life.
Through careful analysis and discussions with my client, we determined she had grounds for a spousal election. We filed the necessary paperwork within the prescribed timeframe, ultimately securing a more equitable share of the estate for her. She was relieved and grateful that she had this legal recourse available to her during a difficult time.
What Happens If There Is No Will?
In cases where a person dies without a will (intestate), state laws determine how assets are distributed. Spousal election rights still apply in intestacy situations, and surviving spouses typically receive a significant portion of the estate.
Should I Consult with an Attorney Regarding a Spousal Election?
Yes, consulting with an experienced probate attorney is crucial when considering a spousal election. An attorney can explain your rights, evaluate the specifics of your situation, help you gather necessary documentation, and guide you through the legal process.
Who Is Ted Cook at Point Loma Estate Planning Law, APC.:
Point Loma Estate Planning Law, APC.2305 Historic Decatur Rd Suite 100, San Diego CA. 92106
(619) 550-7437
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Point Loma Estate Planning Law, APC. area of focus about probate:
Probate: is the legal process that validates a deceased person’s will, appoints an executor to manage their estate, and ensures the orderly distribution of assets to beneficiaries after debts and taxes are paid.
What it is: Probate is a court-supervised process that handles the affairs of a deceased person, ensuring their assets are managed and distributed according to their will (or state laws if there’s no will).
Why it’s necessary: Probate is often necessary to transfer legal ownership of assets to heirs or beneficiaries, especially when assets are held in the deceased person’s name alone.
Importance of understanding probate: Understanding probate is crucial for estate planning and ensuring the orderly and legal distribution of assets after death.
In More Detail – What Is Probate?
Probate is the legal process through which a deceased person’s estate is administered. It involves validating a will (if one exists), identifying and inventorying the deceased’s assets, paying debts and taxes, and distributing the remaining assets to rightful beneficiaries.
If the deceased left a valid will, the person named as executor is responsible for overseeing the probate process. If there is no will, the court appoints an administrator—often a close relative—to handle the estate according to the state’s intestacy laws. Assets subject to probate may include real estate, bank accounts, investment accounts, and personal property that are solely in the decedent’s name.
What Is Estate Planning?
Estate planning is the process of arranging in advance for the management and distribution of your assets after your death. It typically includes creating legal documents such as a will, trusts, powers of attorney, and healthcare directives. The goal is to ensure that your wishes are honored, your loved ones are provided for, and the administration of your estate is as smooth and efficient as possible—often minimizing or avoiding the probate process altogether.
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