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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:
(b) The "separate estate" of the surviving spouse shall include:
a. Under a trust;
b. In proceeds of insurance on the life of the decedent; and
c. Under any broad-based nondiscriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.
(c) 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."