Elective Share | Spousal Inheritance Rights

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.

Key Points on Elective Share

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.

Who Elective Share Applies To:

 

Surviving Spouses

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.

Dependent Children (in Some States)

Some states extend the rights to dependent children.
As such, understanding your jurisdiction’s laws is crucial.

How to Apply for Elective Share

If you believe you’re entitled to an elective share, here are the step-by-step actions to take:

1. Confirm Eligibility

You may apply for an elective share if you:

• • • Were legally married at the time of your spouse’s death.
    • Did not waive your rights in a prenuptial or postnuptial agreement.
    • File within the required time frame (often 6–12 months after death or probate filing).

2. Get a Copy of the Will and Estate Documents

To understand your position, start by reviewing:

• • • The last will and testament
    • The probate petition
    • The inventory of estate assets

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

3. Consult with an Estate Attorney

Although you can file on your own, it’s wise to work with an attorney. An experienced probate lawyer will:

• • • Help you determine your best legal option (intestate share vs. elective share)
    • Calculate the estate’s value
    • Ensure your forms are filed correctly and on time
    • Represent you if the claim is challenged
    • Need guidance with probate court?

4. File a Notice of Election with the Probate Court

To claim your elective share, you must:

• • • File a formal Notice of Election to Take Elective Share with the probate court.
    • Submit it within the legal deadline.
    • Provide notice to the executor or administrator of the estate and any interested parties.

5. Submit Required Documents

You may need to submit:

• • • A marriage certificate
    • The death certificate
    • The inventory of estate and non-estate assets
    • Any prenups/postnups that affect your rights

Learn more about finding key documents here:
How to Find a Death Certificate

6. Attend a Hearing (If Required)

If the estate is contested or someone objects to your claim, the court may schedule a hearing. Be ready to show:

• • • The validity of your marriage
    • That you filed within the correct time frame
    • Your right to a fair share under state law

7. Wait for Approval and Receive Distribution

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.

What If There Is No Will?

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.

Steps to Take When There’s No Will

1. Verify There’s No Will

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?

2. Start Probate if It Hasn’t Been Filed

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

3. Understand the Intestate Laws in Your State

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?

4. Still File a Notice of Election if Needed

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.

Elective Share Amounts

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

Components of the Estate

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.

Waiver

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.

Time Frame

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 vs. Intestate Share: What’s the Difference?

Final Thoughts

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:

• Act quickly — the time limit to file is strict.
• Get legal help to navigate probate laws.
• Use online tools like The U.S. Will Registry to search for missing wills and resources.

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.

 

? Frequently Asked Questions Related to Elective Share