What is an Elective Share?
An "elective share" is the legal term for the portion of a deceased person's estate their spouse may collect. The elective share can be collected in place of what was left to the spouse in the deceased person's will. The amount of the elective share varies from state to state, but in most states, it is between 1/3 and 1/2 of the total estate.
Other factors can come into play when determining the amount of the elective share: - Many states require that the marriage have lasted a certain amount of time
- Some states adjust the proportion depending on the length of the marriage
- Some states adjust the proportion if there are surviving minor children
- Some states reduce the elective share if the surviving spouse is independently wealthy
- Some states do not allow a spouse to take the elective share if the couple has been living separately for a specified time period before the spouse's death
Can Someone Inherit From a Will and Take The Elective Share?
No. The elective share can be taken in place of what the surviving spouse is left in the will. Therefore, if the will already leaves the surviving spouse with a portion of the estate that is equal to or greater than the elective share, the surviving spouse will only inherit through the will.
Can the Elective Share Be Avoided?This depends on the state. In some states:
- assets held in certain types of trusts will not be subject to the elective share
- spouses can sign an agreement while both are still living, in which they agree not to collect the elective share
- all property is subject to the elective share, regardless of whether or not it is held in trust
If you wish to prevent your spouse from collecting the elective share after your death, you should contact an estate planning lawyer. Do I Need A Lawyer?
If your spouse has recently passed away, and you want to determine whether to take under the will or the elective share, you should consult a lawyer. Laws on this issue vary from state to state, and can be very complex. A lawyer can help you understand the law and your options. |
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