Elective Share

An elective share is the portion of a deceased person's estate that a surviving spouse may claim by statute instead of accepting what the will leaves them. Minnesota's provision, which follows the uniform text many states enacted, is captioned simply "ELECTIVE SHARE" and gives the surviving spouse of a decedent domiciled in the state "a right of election . . . to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate." It is also called a forced share.

The right exists because a spouse is treated differently from every other potential heir. A competent adult can generally leave an adult child nothing, and the published disinheritance entry covers how that is done and where its limits are. A spouse is the case state legislatures decided not to leave to the testator, on the view that a marriage creates an economic partnership the survivor should not be written out of by a document signed alone.

Two features make the right difficult to plan around. It is measured against a pool wider than the assets passing under the will, so moving property into beneficiary designations does not remove it from the calculation. And it is generally waivable only through the formalities a state sets for waivers, usually in a prenuptial or postnuptial agreement, which the published prenuptial agreement entry covers.

The two structural families, with real numbers from two states. Minnesota scales the entitlement to the length of the marriage: a marriage of less than one year produces only a supplemental amount, one to two years produces 3 percent of the augmented estate, and the percentage rises in three-point steps to 30 percent at ten years, then in four-point steps to 50 percent at fifteen years or more. Layered on top is a supplemental elective-share amount, which brings a surviving spouse whose entitlement from specified sources falls short up to $75,000. New York takes the other approach: under EPTL 5-1.1-A the elective share is "the greater of fifty thousand dollars . . . or one third of the net estate," computed after deducting debts, administration expenses and reasonable funeral expenses, with estate taxes disregarded. A short marriage and a long one produce very different answers under the first structure and identical answers under the second.

The augmented estate, and why it exists. The elective share would be easy to defeat if it were measured only against what passes under the will, since most American wealth passes outside probate. Minnesota's section 524.2-203 answers that by defining the augmented estate as the sum of four things: the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's own property and nonprobate transfers to others. The last two components are the ones people miss. The pool includes what the survivor is already getting and what the survivor already owns, because the statute is computing a fair total position rather than a windfall.

New York builds the same idea from a list rather than a formula, and the list is worth reading because it names the instruments households actually use. Its testamentary substitutes include gifts causa mortis; transfers within one year of death to the extent made without adequate consideration; Totten trust savings accounts; payable-on-death bank accounts; property held in joint tenancy with right of survivorship or as tenants by the entirety; dispositions where the decedent kept the income or the power to revoke, which reaches a revocable living trust; money payable under a thrift, savings, retirement, pension, deferred compensation, death benefit, stock bonus or profit-sharing plan, though for certain plans only to the extent of 50 percent of the capital value; property subject to a presently exercisable general power of appointment; and securities transferred to a beneficiary under a transfer-on-death registration.

The election tops up, it does not stack. New York's mechanism is explicit: the "net elective share" is the elective share reduced by the capital value of any interest passing absolutely to the spouse, whether by the will, by intestacy or by a testamentary substitute. Minnesota reaches the same result by counting specified amounts, including the spouse's own property, toward the elective-share amount before charging the remainder against the estate and the recipients of nonprobate transfers. So a spouse who was left half the estate outright does not claim a further third on top; they claim the difference, if there is one.

The omitted spouse is a different claim, and the difference matters. Where a person makes a will and then marries, most states do not revoke the will. Instead a separate statute gives the new spouse a claim. Minnesota's section 524.2-301, captioned "ENTITLEMENT OF SPOUSE; PREMARITAL WILL," gives the surviving spouse a share equal in value to what they would have received had the testator died intestate, subject to four exceptions: provision was made for or waived by the spouse in a prenuptial or postnuptial agreement; the will or other written evidence discloses an intention not to provide for them; the person who was the surviving spouse at death was named as a devisee or is the beneficiary of a trust the will refers to; or the testator provided for the spouse by a transfer outside the will intended to take the place of a testamentary provision. The two claims answer different questions. The omitted spouse rule asks whether the will simply predates the marriage and nobody updated it. The elective share applies regardless of when the will was written and regardless of whether the omission was deliberate.

Community property is a different system, not a different number. In a community property state, most property acquired during the marriage already belongs to both spouses by operation of law, so the survivor owns their half outright and there is generally nothing analogous to elect into for that property. Those states typically do not provide an elective share of the kind described here, though several retain separate statutory protections such as a homestead right or a family allowance, and the treatment of the deceased spouse's separate property varies. The published marital property and community property entries cover the systems themselves. The practical point for a couple who move between systems is that the protection changes shape with the state, and the live guide to family and life events covers how badly that can catch a blended family whose plan was settled somewhere else.

The deadlines are short and unforgiving. Every statute of this kind sets a filing period running from a date such as death, the admission of the will to probate, or the appointment of a personal representative, and the right is lost if the period passes. The periods differ by state, and the elective share is not a claim anyone can raise in their own time.

1. Identify the governing state. The statute of the decedent's state of domicile generally controls, and the answers differ substantially between states.

2. Determine the percentage or fraction. Under an accrual statute it depends on the length of the marriage; under a flat-fraction statute it does not, though a dollar floor may apply to a small estate.

3. Build the pool. Add the probate estate, the decedent's nonprobate transfers to others and to the spouse, and in an augmented-estate state the spouse's own property, or work through the state's list of testamentary substitutes.

4. Compute the amount by applying the percentage or fraction to the pool.

5. Subtract what the spouse already receives, whether by will, by intestacy, or by a nonprobate transfer, to reach the net claim.

6. File the election within the statutory period, and expect the shortfall to be charged against the estate and, in order of priority, against the recipients of nonprobate transfers.

Consider an example, with invented figures. Dara dies leaving a will that gives her entire estate to her two children from an earlier marriage and nothing to her husband Paulo. The augmented estate comes to $1,200,000, counting the probate assets, a payable-on-death brokerage account, a revocable trust and Paulo's own property.

Under a statute in the Minnesota form, the percentage depends on how long they were married. At twelve years the schedule gives 38 percent, so the elective-share amount is 0.38 x $1,200,000 = $456,000. Had they been married three years, the schedule would have given 9 percent, or 0.09 x $1,200,000 = $108,000. Anything already passing to Paulo counts toward satisfying the figure, and only the shortfall is charged against the estate and the recipients of the nonprobate transfers.

Under New York's structure the length of the marriage is irrelevant: the share is the greater of $50,000 or one third of the net estate. The pool is not built the same way, because a New York net estate is computed after debts, administration expenses and reasonable funeral expenses and does not sweep in the survivor's own property, so holding the figure at $1,200,000 isolates the effect of the percentage rather than reproducing the New York arithmetic. On that figure one third is $1,200,000 ÷ 3 = $400,000, the same at twelve years as at three. One set of facts, two structures, and an entitlement that moves from $456,000 against $400,000 in the first comparison to $108,000 against $400,000 in the second.

What the right achieves

• It sets a floor a will cannot go below for a surviving spouse, without requiring anyone to litigate whether the deceased was unduly influenced.
• The enlarged pool closes the obvious workaround of moving assets into joint accounts, beneficiary designations and revocable trusts.
• Accrual statutes scale the entitlement to the length of the marriage, which produces a more defensible answer in a short second marriage.
• Because what the spouse already receives counts toward the amount, it functions as a top-up rather than a windfall.
• A supplemental floor protects the survivor of a small estate, where a percentage of very little would be worth nothing.

Where it causes difficulty

• It can reopen a plan the couple thought was settled, particularly in a blended family where the will was written to protect children from an earlier marriage.
• The answer depends heavily on the state, and a couple who move may find a plan built around one statute measured against a different one.
• Computing an augmented estate is genuinely complex, since it reaches lifetime transfers, retirement plans and the survivor's own property.
• The deadlines are short and the right is lost if the filing period passes.
• It is a right, not a distribution, so an elderly or unwell survivor may need someone acting for them to exercise it in time.
• It is not uniform in what it reaches, so a planner cannot assume a beneficiary designation, a trust or a retirement account will be treated the same way in two neighboring states.