Legal Definitions - elective share

The elective share is a legal term that refers to a spousal share, which is also known as a statutory share, election against the will, or forced share. It is a law in the United States that prevents a spouse from being disinherited.

When someone dies, their property and assets are distributed according to their will. However, if the deceased spouse did not leave anything for their surviving spouse, the elective share law comes into play. This law gives the surviving spouse a fixed fraction of the deceased spouse's probate estate. Traditionally, this fraction is one-third of the estate, regardless of the length of the marriage. For example, if a husband dies and leaves behind a $300,000 estate, his wife would be entitled to $100,000.

The Uniform Probate Code provides a more complicated scheme for determining the elective share. Elective share statutes are enacted in "separate property states." These are often contrasted with "community property states." In separate property states, the property and assets acquired during the marriage belong to the spouse who acquired them. In community property states, the property and assets acquired during the marriage belong to both spouses equally.

Overall, the elective share law ensures that a surviving spouse is not left with nothing after their partner's death. It provides a safety net for spouses who may have been left out of their partner's will.