Elective Share
Overview
An elective share is a legal right that allows a surviving spouse to claim a specific portion of their deceased spouse's estate, regardless of what was specified in the will. This protection prevents a spouse from being completely disinherited and ensures financial security for the surviving partner.
Key Components of Elective Share
Statutory Percentage
- Most states provide between 30-50% of the estate as elective share
- The percentage often depends on the length of marriage
- Some states use a sliding scale based on marriage duration
Qualifying Estate Assets
- Probate assets: Property passing through the will
- Non-probate assets: Often includes:
- Joint accounts
- Life insurance proceeds
- Retirement accounts
- Property held in trust
State-by-State Variations
Common Approaches
-
Traditional Approach
- Based solely on probate assets
- Easier to calculate but may not reflect total wealth
-
Augmented Estate Approach
- Includes both probate and non-probate assets
- More comprehensive but complex to calculate
Time Limitations and Requirements
-
Filing Deadline
- Usually 6-9 months after death
- Must be filed with probate court
- Strict adherence to deadlines required
-
Qualification Requirements
- Must be legally married at time of death
- Some states require minimum marriage duration
- Cannot be waived without proper legal documentation
Common FAQs
Q: Can an elective share be waived?
A: Yes, through a prenuptial or postnuptial agreement that meets state requirements.
Q: Does separation affect elective share rights?
A: Legal separation may affect rights; varies by state.
Q: How is the share calculated?
A: Calculation methods vary by state but typically involve determining the total estate value and applying the statutory percentage.
Important Considerations
Planning Implications
-
Estate Planning
- Must consider impact on intended distributions
- May affect charitable giving plans
- Could influence trust structures
-
Tax Consequences
- May affect estate tax calculations
- Could impact basis step-up opportunities
- Timing of election can have tax implications
Summary
Understanding elective share rights is crucial for both estate planning and surviving spouse protection. It serves as a safety net ensuring spousal financial security while potentially affecting overall estate distribution plans. Professional legal counsel is recommended when dealing with elective share matters due to their complexity and state-specific variations.
Key Takeaways
- Protects surviving spouse from disinheritance
- Varies significantly by state
- Requires timely action
- Can be waived through proper legal agreements
- May significantly impact estate planning strategies
Note: This information is general in nature and may not apply to specific situations. Consult with a qualified attorney for advice regarding your particular circumstances.
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Related Terms
Here are some related terms that are relevant to the estate planning term "Elective Share":
- Intestacy: The legal process that determines how a person's assets are distributed if they die without a valid will.
- Probate: The court-supervised process of administering a deceased person's estate and distributing their assets.
- Prenuptial Agreement: A legal contract entered into by a couple before marriage that outlines the division of assets and other financial arrangements in the event of a divorce or death.
- Postnuptial Agreement: A legal contract entered into by a married couple that outlines the division of assets and other financial arrangements in the event of a divorce or death.
- Marital Property: Assets acquired during a marriage, which are typically subject to division in a divorce.
- Separate Property: Assets owned by an individual before marriage or acquired during the marriage through inheritance or gift, which are typically not subject to division in a divorce.
- Testamentary Capacity: The legal requirement that a person must have the mental capacity to understand the nature and extent of their property, the people who are the natural objects of their bounty, and the disposition they are making of their property.
- Undue Influence: The improper influence exerted over a person, such as a testator, that causes them to make a decision they would not have made otherwise.
- Disinheritance: The act of excluding an individual, such as a spouse or child, from inheriting all or part of a deceased person's estate.
- Fiduciary Duty: The legal obligation of a person, such as an executor or trustee, to act in the best interests of the beneficiaries of the estate or trust.
