An "elective share" is the legal term for the portion of a deceased person's estate that their surviving spouse may collect. The surviving spouse can receive the elective share in place of what was left to them in the will. The amount of the elective share varies from state to state, but it is usually 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 surviving spouse to take the elective share if the couple had been living separately for a specified time period before the deceased spouse's death

Can Someone Inherit and Take the Elective Share?

No. The elective share can only 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. Some states allow for an elective share to be avoided if:

  • The assets are held in certain types of trusts that prevent them from being subject to the elective share
  • Both spouses have signed an agreement while both are still living, in which they agree not to collect the elective share

If you wish to prevent your spouse from collecting the elective share after your death, you should contact a lawyer to find out what steps you need to take in your state.

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 an estate lawyer. Laws on this issue vary from state to state, and can be very complex. A lawyer can help you understand the laws in your state and your options.