Elective Share Law and Legal Definition

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:

  1. All of the estate of the deceased reduced by the value of the surviving spouse's separate estate; or
  2. One-third of the estate of the deceased.

(b) The "separate estate" of the surviving spouse shall include:

  1. All property which immediately after the death of the decedent is owned by the spouse outright or in fee simple absolute;
  2. All legal and equitable interests in property the possession or enjoyment of which are acquired only by surviving the decedent; and
  3. All income and other beneficial interests:

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."