Surviving Spouse's Elective Share

Definition

The elective share (sometimes called the widow's election, forced election, or "taking against the will") is a statutory right of a surviving spouse to receive a specified share of the decedent's estate instead of accepting the provisions made for the spouse in the decedent's will. The surviving spouse may either claim or waive the elective share. If waived, the surviving spouse can keep whatever he or she received under the will or other arrangements. The rationale behind the elective share is that it is in the public's best interest to protect surviving spouses. The elective share is determined under state law and varies from state to state.

Key strengths

• Protects a spouse from becoming impoverished by an inadequate inheritance
• May reduce estate or income taxes

Key tradeoffs

• Receipt or waiver of the elective share may make an institutionalized spouse ineligible for Medicaid

How to do it

• Election must be made in a timely fashion (varies from state to state)
• The surviving spouse must initiate legal proceedings
• The election is made in writing (or by petition), filed with the appropriate court, and served on the estate's personal representative
• After notice and hearing, the court orders the beneficiaries and/or the estate's personal representative to contribute a pro rata share of the estate's assets to satisfy the surviving spouse's elective share

Tax consequences

• In separate property states, amounts received by the surviving spouse pursuant to a spousal election qualify for the unlimited marital deduction
• In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) and Puerto Rico (Alaska has an optional system), the surviving spouse generally has no right to an elective share because the surviving spouse already owns half of all community property