Right of election refers to a surviving spouse's right to opt for the
statutorily defined portion of their deceased spouse's estate, rather than
the provision made for them in the will. Elective shares are governed by
state laws, which vary by state. Under such laws, the surviving spouse
has historically had the option of either: (i) accepting what was provided
to him or her pursuant to the decedent’s will; or (ii) electing to take
a fixed portion of the decedent’s probate estate property. The rationale
for granting an election to the surviving spouse is to ensure that the
surviving spouse received at a minimum amount of the decedent’s wealth
which, in many cases, was accrued during the marriage.
The following is an example of a state statute defining the elective
share:
"The elective share shall be the lesser of:
- All of the estate of the deceased reduced by the value of the surviving
spouse's separate estate; or
- One-third of the estate of the deceased.
- (b) The "separate estate" of the surviving spouse shall include:
- All property which immediately after the death of the decedent is
owned by the spouse outright or in fee simple absolute;
- All legal and equitable interests in property the possession or
enjoyment of which are acquired only by surviving the decedent; and
All income and other beneficial interests:
- Under a trust;
- In proceeds of insurance on the life of the decedent; and
- Under any broad-based nondiscriminatory pension, profit-sharing,
stock bonus, deferred compensation, disability, death benefit or other
such plan established by an employer.
- If a married person not domiciled in this state dies, the right,
if any, of the surviving spouse to take an elective share in property in
this state is governed by the law of the decedent's domicile at death."
