The legal name for the portion of a deceased person’s inheritance that their surviving spouse may get is an “elective share.” The elective share may be given to the surviving spouse in lieu of the bequest made to them in the will.
State by state, the elective share varies in size but typically ranges between one-third and fifty percent of the estate.
The following variables may also be taken into account when calculating the elective share’s value:
- Many states need that the marriage has been together for a specific period of time.
- Some states modify the ratio based on the duration of the marriage.
- In some places, the ratio is changed if there are still any minor children.
- In some states, the elective portion is reduced if the surviving spouse is independently affluent.
If the couple had been living apart for a predetermined time before the deceased spouse’s death, several states do not let the surviving spouse claim the elective share.
Can Someone Inherit and Exercise their Right to Vote?
No, the elective share can only be used to replace the bequest made in the will for the surviving spouse. Therefore, the surviving spouse will only inherit through the will if the will already leave them with a portion of the estate that is equal to or more than the elective share.
The Elective Share: Is It Avoidable?
The state determines this. Some states permit the avoidance of an elective share when:
- Certain trust types hold the assets, preventing them from being subject to the elective share.
- While they were both still alive, the couple signed a document stating that they would not be collecting the elective share.
You should speak with a lawyer to learn what actions you need to take in your state if you want to stop your spouse from receiving the elective share after your passing.
Typical Estate Planning Conflicts
When an estate plan, outlined in a last will and testament, is carried out after the owner of the estate (the “decedent”) passes away, estate planning issues might occur. Occasionally, a disagreement may arise while the estate is being planned. In either scenario, having a sound estate plan is crucial.
A thorough estate plan should take into account every aspect of a person’s assets and demonstrate diligent planning. Of course, events can alter, and the estate plan might not update to reflect those changes. Even so, making an estate plan that can be modified if a person’s circumstances change is crucial.
It’s still possible for disputes to arise even with careful estate preparation. The following are some of the estate-related disputes that are more frequent:
- Conflicts may arise, for instance, if the deceased stated they intended to amend their last will and testament or other relevant paperwork to modify who would receive specific property, but they failed to do so in practice;
- Conflicts where the beneficiaries of a will feel that the assets have been allocated unfairly or differently than what was anticipated by some parties;
- Arguments over the legality of a will or an estate plan, for instance, interested parties may assert that the will was improperly created or executed;
- Conflicts with the executor or administrator of the estate:
- A court appoints an executor to oversee an estate and carry out the plan outlined in a will or other pertinent documents after a person passes away. Conflicts may arise as a result of the executor mismanaging the estate in some way, possibly through fraud;
- There’s a chance that some interested parties won’t like the executor or how they were selected;
- Questions surrounding the decedent’s unexpected infirmity or incapacitation
- An interested party may claim that someone used undue influence to force the decedent to alter their will; or
An interested party may claim that the decedent was incompetent when they created or altered their estate plan since they generally did not understand what they were doing.
Disputes over specific family issues may arise as the estate plan is being carried out. Sibling rivalries and the decedent’s later marriages can lead to disputes between the many individuals that stand to inherit or feel they should and someone else shouldn’t. If a substantial bequest is left in a will to a subsequent spouse who is not their mother or father, adult children can be shocked. Additionally, some siblings can think that their deceased sibling’s wishes have not been followed, whether they are included in the will or not.
A will is not the only estate planning tool; it frequently specifies how much of the decedent’s estate should be dispersed in a last will and testament. Other than a written will, many distributional difficulties can be resolved. A sound estate plan may include strategies for making wise use of additional financial resources and tools.
Examples of instruments for transferring specific types of property without the need of a will include the following:
- Life insurance: Without the use of a will, the proceeds of life insurance plans pass immediately to the named beneficiaries;
- Annuities: With an annuity, the owner can name a beneficiary, and upon the owner’s passing, the selected beneficiaries receive the balance of the annuity;
- Money in banks POD: A person can choose specific beneficiaries to receive the funds in their bank accounts, including checking, savings, money market, certificates of deposit (CDs), and savings deposits, in the event of their passing;
- Investment accounts can be configured to transfer upon death (TOD), similar to bank accounts that are POD: Again, the owner names beneficiaries for stocks, bonds, and brokerage accounts, and upon the owner’s passing, the assets in these accounts pass to the named beneficiaries;
- Joint tenancy property: Married couples frequently hold a joint tenancy with the right of survivorship over their primary residence. As a result, there are no tax or other financial repercussions when one spouse passes away, and the other becomes the sole owner. Property can be owned in joint tenancy by any number of people, not just married couples;
- Living trust: In contrast to a will, the assets in a living trust pass straight to the named trustees. However, keep in mind that specifics must be worked out for each type of asset if a person names a living trust as the beneficiary of other assets, such as IRAs and 401(K) accounts. For instance, IRAs and 401(K) accounts must have beneficiaries who are actual persons and not a trust.
Do I Need an Attorney?
You should speak with an estate counsel if your spouse recently passed away and you’re trying to decide whether to draw from the will or the elective share. State laws on this matter differ from one another and can be highly complicated. You can learn more about your state’s legislation and alternatives from a lawyer in your area.
Effective estate planning can prevent disagreements and an unsatisfactory transfer of assets. To assist you in deciding how your estate should be allocated, you might want to employ an estate planning attorney. The lawyer can create a strategy that matches your specific objectives because they are well-versed in the estate, will, trust, and other methods of passing property after death in the state where you reside.