Elective Share is a legal right that protects surviving spouses from being disinherited. It applies whether a spouse dies without a will, leaves their partner out of a will, or provides less than the minimum share set by state law. In these situations, the elective share allows a spouse to claim their rightful portion of the estate, often through probate.
The primary objective of the elective share is to ensure that a surviving spouse is not disinherited. In other words, the law protects their right to a portion of the estate, even if the will omits them. This could be a situation where elective share laws apply.
Typically, the surviving spouse files when left out of the will. Just keep in mind that time is of the essence. You must apply to the probate courts as soon as possible.
Learn more in Executor of Estate – A Guide for Families and First-Time Executor.
Some states extend the rights to dependent children.
As such, understanding your jurisdiction’s laws is crucial.
If you believe you’re entitled to an elective share, here are the step-by-step actions to take:
You may apply for an elective share if you:
To understand your position, start by reviewing:
If you haven’t seen the will yet, read: Who Can Get a Copy of a Will
Still can’t find it? How to Locate a Lost Will: A Step-by-Step Guide
Although you can file on your own, it’s wise to work with an attorney. An experienced probate lawyer will:
To claim your elective share, you must:
You may need to submit:
Learn more about finding key documents here:
How to Find a Death Certificate
If the estate is contested or someone objects to your claim, the court may schedule a hearing. Be ready to show:
Once approved, the court calculates your elective share based on the total value of the estate. The probate court then ensures your portion is properly distributed.
If your spouse died without a will (called intestate), you may still qualify for elective share—or more accurately, you may be entitled to a spousal intestate share under state law.
Sometimes, wills are simply lost. If you can’t find one, make certain your search The U.S. Will Registry
Related Articles: Can’t Find the Will?
If probate hasn’t started, you or another family member can file a petition with the court to open probate and appoint an administrator (not an executor, since there’s no will).
Related Articles: How to Settle an Estate Without a Will
Each state has specific laws on how assets are divided if there is no will. In most cases:
The spouse receives all or a portion of the estate, depending on whether the decedent had children.
You may not need to file an elective share claim if your intestate share is sufficient.
Related Articles: Died Without a Will: Now What?
In some states, even when there’s no will, a spouse can choose to file for an elective share instead of accepting the intestate share if it results in a larger portion of the estate.
In various states, the amount of the elective share can vary. For example, some states offer one-third of the estate, while others offer one-half. Therefore, it’s important to check state-specific laws to understand what applies.
ELECTIVE SHARE CHART FOR EACH STATE
Elective shares usually include probate assets, such as houses, vehicles, and bank accounts. However, some states may include non-probate assets, like joint accounts or retirement plans.
To better understand these distinctions, read about defining probate assets.
A spouse may waive their right to an elective share by signing a prenuptial or postnuptial agreement. By doing this, they legally give up the claim. This waiver must be clear and in writing.
Usually, there is a specific time frame for filing a claim. This can range from a few months up to one year after death. Therefore, missing this deadline may result in permanently losing the right to claim. If you’re unsure how to proceed, here’s a helpful guide to filing a probate petition.
| Elective Share | Intestate Share |
|---|---|
| Claimed by surviving spouse when disinherited or under-provided for in a will | Automatic share granted by state law when no will exists |
| Must file a formal claim | No claim is required unless challenging estate |
| May include probate and non-probate assets | Usually includes only probate assets |
When a spouse claims an elective share, they exercise a powerful legal right that protects them from unfair exclusion from a deceased partner’s estate. Whether there is a will or not, surviving spouses have options.
If you’re in this situation:
Elective share laws provide vital protections for surviving spouses and sometimes dependent children. If you feel disinherited or left out, the elective share might be your path to receiving your legal share.
Elective share in probate gives a surviving spouse the legal right to claim part of a deceased partner’s estate. Even if a will leaves them out, most states allow a spouse to file for an elective share, provided they meet deadlines and did not waive this right in a prenuptial or postnuptial agreement.
Elective share in probate gives a surviving spouse the legal right to claim part of a deceased partner’s estate. Even if a will leaves them out, most states allow a spouse to file for an elective share, provided they meet deadlines and did not waive this right in a prenuptial or postnuptial agreement.
Yes, not receiving your elective share often leads to probate litigation when inheritance disputes arise. A surviving spouse may challenge the will if excluded or under-provided for, forcing the probate court to determine their rightful share. These disputes are common when family members contest assets or when deadlines for filing a Notice of Election are close.
If a spouse dies without a will, elective share rights still protect the surviving spouse. State intestacy laws may grant a share automatically, but in some cases, filing for elective share can result in a larger inheritance. Acting quickly and filing within deadlines is essential to preserve these rights.
This article was prepared by estate planning researchers and reviewed by S. Miller and staff. With more than 25 years of experience in estate planning documentation and probate processes, our editorial oversight ensures clarity and accuracy. This content is provided for informational purposes only and does not constitute legal advice.
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