Right of Election in Estate Planning
Overview
The Right of Election, also known as the "elective share" or "widow's election," is a legal protection that allows a surviving spouse to claim a portion of their deceased spouse's estate, even if they were excluded from the will or received less than the statutory minimum share. This right serves as a safeguard against disinheritance and ensures financial protection for surviving spouses.
Key Components of Right of Election
Statutory Share
- Most states guarantee surviving spouses approximately one-third to one-half of the deceased spouse's estate
- The exact percentage varies by jurisdiction
- Applies to both probate and certain non-probate assets
Time Limitations
- Surviving spouses must typically exercise their right of election within a specific timeframe
- Usually ranges from 6-9 months after the deceased spouse's death or probate of the will
- Failure to file within the deadline may result in forfeiture of the right
How Right of Election Works
Calculation Process
- Determine the total value of the augmented estate
- Calculate the statutory percentage allowed by state law
- Subtract any assets already received through:
- Joint ownership
- Life insurance proceeds
- Retirement accounts
- Other non-probate transfers
Filing Requirements
- Written notice must be filed with the probate court
- Copy must be served to the estate's executor/administrator
- May require legal counsel to ensure proper execution
Common Scenarios
When to Consider Right of Election
- Disinheritance by the deceased spouse
- Receiving less than the statutory minimum
- Questionable changes to the will near death
- Presence of children from previous marriages
Limitations and Exceptions
Waiver of Rights
- Can be waived through prenuptial agreements
- Post-nuptial agreements may affect election rights
- Must be executed voluntarily with full disclosure
State-Specific Variations
- Community property states handle election differently
- Some states consider length of marriage
- Treatment of non-probate assets varies by jurisdiction
FAQ Section
Q: Can the right of election be exercised after accepting benefits under the will?
A: Generally no. Accepting benefits under the will may constitute a waiver of election rights.
Q: Does right of election apply to all assets?
A: No. Some assets may be excluded depending on state law and how they are titled.
Q: Can the right be exercised by a deceased spouse's estate?
A: Typically no. The right is personal to the surviving spouse.
Q: What happens if the spouse is incapacitated?
A: A guardian or conservator may exercise the right with court approval.
Summary
The Right of Election is a crucial protection in estate planning that ensures surviving spouses receive a fair share of their deceased spouse's estate. Understanding this right is essential for:
- Estate planning professionals
- Married couples planning their estates
- Surviving spouses evaluating their options
- Executors administering estates
It's recommended to consult with a qualified estate planning attorney to understand how the Right of Election applies in your specific jurisdiction and circumstances.
Note: This information is general in nature and may vary by jurisdiction. Consult local legal counsel for specific advice.
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Related Terms
Here are some related terms that are relevant to the estate planning term "Right of Election":
- Elective Share: The statutory portion of a deceased spouse's estate that the surviving spouse is entitled to claim, regardless of the provisions in the will.
- Augmented Estate: The total value of the deceased spouse's probate and certain non-probate assets that are included in the calculation of the elective share.
- Disinheritance: The act of excluding a spouse from inheriting any portion of the deceased spouse's estate.
- Prenuptial Agreement: A legal contract entered into before marriage that can waive or limit the surviving spouse's right of election.
- Post-Nuptial Agreement: A legal agreement made during the marriage that can affect the surviving spouse's right of election.
- Probate: The legal process of administering a deceased person's estate and distributing their assets.
- Executor: The person or institution responsible for managing and distributing the deceased's estate according to the terms of the will.
- Conservatorship: A legal arrangement where a court-appointed guardian manages the affairs of an incapacitated person, including exercising the right of election.
- Community Property: A legal concept in certain states where assets acquired during the marriage are considered jointly owned by both spouses.
- Statutory Minimum: The minimum percentage of the deceased spouse's estate that the surviving spouse is entitled to under state law.
These related terms provide a broader context for understanding the "Right of Election" in the field of estate planning.
