Elective share laws were created to protect surviving spouses against disinheritance. Even if a will expressly excludes the surviving spouse, the spouse can claim a portion of the deceased spouse’s estate. The amount of inheritance depends on various factors. Therefore, disinherited spouses should consult a contested (Probate) estate attorney promptly.
Elective Share Laws
These statutes apply when the will omits a surviving spouse. They also come into play when the surviving spouse receives a smaller share than what state intestacy laws would dictate. For example, in Illinois, a surviving spouse can claim either one-third or one-half of the estate, depending on the presence of descendants.
Renouncing a Will
To collect the elective share, surviving spouses must file a renunciation within seven months of probate admission. Successful renunciation allows collection after settling debts, taxes, and confirming the estate’s existence.
Avoiding the Elective Share Statute
Testators can prevent the elective share statute’s application by excluding assets from the probate estate. Assets in living trusts, payable-on-death accounts, life insurance proceeds, IRAs, and joint tenancy properties with someone other than the surviving spouse fall outside the statute’s purview.
Elective Share of Spouse
In the absence of a Prenuptial Agreement or Postnuptial Agreement, surviving spouses have the right to claim an elective share. This entitlement, historically rooted in caring for widows, applies equally to husbands and wives, with the claimed amount governed by state rules at the decedent’s date of death.
Elective Share History
Historically, communities wanted to provide for widows, leading to the development of elective share laws. Presently, these laws apply impartially to both husbands and wives.
The Statute of Limitations on Elective Share.
Spouse and Executor Beware!
Surviving spouses must adhere to state-specific time limits for electing their share. Delaying beyond these limits results in a lapse of the right to election. Both surviving spouses and executors should consult with a Probate Attorney to ensure compliance.
Contesting the Elective Share
Disputes over elective share can lead to Probate Litigation. Executors and surviving spouses have the right to retain Estate Litigation Attorneys for defense or assertion of claims. The court may authorize evidentiary discovery if settlement attempts fail.
What Happens if I Disinherit My Spouse?
Without a Prenuptial or Postnuptial Agreement, wives can exercise their Elective Share rights based on the residence at death. Leaving a symbolic amount in a will does not exempt husbands from their wives’ elective share claims.
Can I Just Leave My Husband a Dollar in My Will and Nothing Else?
Unless a husband waives the Elective Share right through a Prenuptial or Post-Nuptial Agreement, leaving a nominal amount in the will allows husbands to exercise their share rights, albeit reduced by the dollar.
What if My Spouse Does Not Exercise His/Her Elective Share?
Surviving spouses must proactively exercise their right, or else it becomes forfeited. The statute of limitations governs this right, and failure to act within the prescribed period results in waiver. Involuntary disinheritance is impossible without a waiver in a prenuptial agreement.
Therefore, it is imperative for surviving spouses to remain aware of their rights. This is especially true when contemplating a spousal election. Seeking guidance from an experienced estate litigation attorney becomes essential for navigating the complexities of elective share rules and protecting one’s rightful claims.
The Importance of Legal Guidance
Navigating elective share laws can be complex, and seeking legal counsel is crucial for both surviving spouses and executors. An experienced contested estates attorney can provide valuable assistance in understanding the intricacies of the law, ensuring compliance with statutes of limitations, and protecting the interests of all parties involved.
Conclusion
Knowing elective share laws is very important for anyone doing estate planning or dealing with a contested estate. Surviving spouses should know their rights, keep track of time limits set by the law, and be ready for difficulties in getting their elective share. Executors also need to carefully handle the legal side to protect the deceased person’s estate.
In these situations, it’s really helpful to have legal advice. A contested estates lawyer who knows what they’re doing can make sure everyone gets fair treatment according to the law. Since elective share laws are always changing, it’s best to stay informed and get professional help when dealing with estate planning and probate.
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Elective Share’s In Each State:
While elective share laws exist in many states, the specific details vary. Below is a general overview, but it’s essential to consult local statutes or seek legal advice for accurate and up-to-date information.
Alabama:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Alaska:
- Surviving spouse can claim one-third of the elective estate.
Arizona:
- Surviving spouse is entitled to one-third of the net elective estate.
Arkansas:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
California:
- Surviving spouse can claim one-third of the decedent’s estate.
Colorado:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the length of the marriage.
Connecticut:
- Surviving spouse is entitled to one-third of the combined estate.
Delaware:
- Surviving spouse can claim one-third of the combined estate.
Florida:
- Surviving spouse can claim 30% of the elective estate.
Georgia:
- Surviving spouse can claim one-third of the combined estate.
Hawaii:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Idaho:
- Surviving spouse is entitled to one-half of the combined estate.
Illinois:
- Surviving spouse may elect to receive one-third or one-half of the estate, depending on the presence of descendants.
Indiana:
- Surviving spouse can claim one-third of the combined estate.
Iowa:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Kansas:
- Surviving spouse is entitled to one-half of the combined estate.
Kentucky:
- Surviving spouse can claim one-third of the combined estate.
Louisiana:
- Surviving spouse may claim one-fourth or one-half of the combined estate, depending on the presence of children.
Maine:
- Surviving spouse is entitled to one-third of the combined estate.
Maryland:
- Surviving spouse can claim one-third of the combined estate.
Massachusetts:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the length of the marriage.
Michigan:
- Surviving spouse is entitled to one-half of the combined estate.
Minnesota:
- Surviving spouse can claim one-third of the combined estate.
Mississippi:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Missouri:
- Surviving spouse is entitled to one-half of the combined estate.
Montana:
- Surviving spouse can claim one-third of the combined estate.
Nebraska:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Nevada:
- The surviving spouse receives one-third of the combined estate.
New Hampshire:
- Surviving spouse can claim one-third of the combined estate.
New Jersey:
- Surviving spouse can claim one-third of the combined estate.
- New Mexico:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
New York:
- Surviving spouse is entitled to the greater of $50,000 or one-third of the estate.
North Carolina:
- Surviving spouse is entitled to 50% of the net elective estate.
North Dakota:
- Surviving spouse can claim one-third of the combined estate.
Ohio:
- Surviving spouse is entitled to one-third of the combined estate.
Oklahoma:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Oregon:
- Surviving spouse is entitled to one-third of the combined estate.
Pennsylvania:
- Surviving spouse can claim one-third of the combined estate.
Rhode Island:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the length of the marriage.
South Carolina:
- Surviving spouse receives one-third of the combined estate.
South Dakota:
- Surviving spouse can claim one-third of the combined estate.
Tennessee:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the presence of children.
Texas:
- Surviving spouse may claim a one-third, one-half, or one-quarter share, depending on the presence of children.
Utah:
- Surviving spouse receives one-third of the combined estate.
Vermont:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the length of the marriage.
Virginia:
- Surviving spouse can claim one-third of the combined estate.
Washington:
- Surviving spouse receives one-half of the combined estate.
West Virginia:
- Surviving spouse may claim one-third or one-half of the combined estate, depending on the length of the marriage.
Wisconsin:
- Surviving spouse receives one-third of the combined estate.
Wyoming:
- Surviving spouse can claim one-third of the combined estate.
It’s crucial to note that these are general guidelines, and elective share laws may have specific conditions or exceptions. Consulting with a local attorney is recommended for accurate information tailored to each jurisdiction.
