Legal Definitions - election under the will

Election under the will, also known as taking against the will, is when a surviving spouse decides to refuse what their deceased spouse left to them in their will. Instead, they choose to claim the share of the estate that is allowed by state law, which is known as their statutory share.

Let's say John and Jane were married, and John passed away. In his will, John left all of his property to his children from a previous marriage and nothing to Jane. However, Jane has the option to take against the will and claim her statutory share of the estate, which is usually one-third or one-half of the estate, depending on the state. If Jane decides to take against the will, she will receive her statutory share of the estate, even though John did not leave anything to her in his will.

This example illustrates how a surviving spouse can choose to take against the will and claim their statutory share of the estate, even if the deceased spouse did not leave anything to them in their will.