Election Under the Will Law and Legal Definition

Election under the will means ‘electing to take against the will’. In the U.S., most of the states have probate statutes providing a widow a particular percentage of the late husband's estate. Under the principle of election under the will, the surviving wife can elect to receive a particular share of deceased spouse's estate in lieu of receiving the specified share left to him/her under the deceased spouse's will.

When a surviving spouse elects to take under the will, the surviving spouse is barred of all right to an intestate share of the property passing under the will and shall take under the will alone, unless it plainly appears from the will that the provision for the surviving spouse was intended to be in addition to an intestate share. However, an election to take under the will does not bar the right of the surviving spouse to an intestate share of that portion of the estate as to which the decedent dies intestate. Further, an election to take under the will does not bar the right of the surviving spouse to remain in the mansion house, and does not bar the right of the surviving spouse to receive the allowance for the support unless the will expressly otherwise directs.