Elective Share – Definition

Cite this article as:"Elective Share – Definition," in The Business Professor, updated November 30, 2018, last accessed October 27, 2020, https://thebusinessprofessor.com/lesson/elective-share-explained/.


Elective Share (Inheritance) Definition

An elective share is a legal term which is used in American law and is associated with inheritance. An elective share in the United States enables a spouse of the deceased person to claim inheritance rights. The surviving spouse is entitled a fixed percentage of wealth left by a deceased spouse. Traditionally, surviving spouse is entitled to receive one-third of the total wealth regardless of marriage length.

A Little More on What is Elective Share

The concept of elective share is the modern form of dowry, which is the reserved fraction of a deceased’s estate. It allows a surviving spouse to benefit in the event she is disinherited by the decedent. The concept of elective share also enables a surviving spouse to become financially independent.

The amount of an estate that is reserved to the spouse is controlled by state law where the estate is located. In most states. the elective share is reserved between 1/3 and ¬Ĺ of the entire estate. Many states calculate or adjust the elective share based upon the length of marriage and the presence of minor children to claim elective share.

Elective share laws vary considerably between the states. For example, some physical or financial assets may be exempted from the estate when calculating elective shares. In some states children may also claim an elective share. Below is an example of a state elective share statute:

The state law defines elective share as following;

a) Elective share is the value of estate of deceased subtracts the value of estate owned separately by the surviving spouse.
b) It is fixed one-third portion of the estate.

The spouse’s estate may include;

a) The property or estate owned by surviving spouse after the death of decedent.
b) All the legal possession and equitable interest and assets which are owned by surviving person only.

References for Elective Share

Academic Research on Elective share

The Augmented¬†Estate¬†Concept Under the Uniform Probate Code: In Search of an Equitable¬†Elective Share, Kurtz, S. F. (1976). Iowa L. Rev.,¬†62, 981 The Uniform Probate Code was published in 1970. The code was designed to appeal to lawmakers, that understand the reason and need for the reform, with the hope that it would be adopted by several important legislative bodies to ensure its overall adoption in all the states. Under the Uniform Probate Code, the deceased’s spouse has the right to claim an elective share of about one-third of the augmented estate whether the deceased spouse left a will or not.

Marital Partnership Theory and the Elective Share: Federal Estate Tax Law Provides a Solution, Gary, S. N. (1994). U. Miami L. Rev., 49, 567. In a bid to defend the rights of living spouses, the common law states implemented an elective share law that limits the freedom of the written will of married couples. The law prevents spousal disinheritance by giving the living spouse the authority to take a share of the deceased spouse’s estate, therefore protect the marital rights of a spouse (commonly the wife who contributes to the marriage through homemaking and raising the children).

Incorporating the Partnership Theory of Marriage into¬†ElectiveShare¬†Law: The Approximation System of the Uniform Probate Code and the Deferred-Community¬†‚Ķ, Newman, A. (2000). Emory LJ,¬†49, 487. The objectives of this paper are to (1) determine how effective the approximation system is in integrating the marital partnership theory into elective share law, and (2) to suggest a deferred-community-property system as a substitute strategy. Under this system, the living spouse’s share will be half of the partner’s actual matrimonial assets rather than half of the estimated matrimonial assets determined by the duration of their marriage.

Transfers Prior to Marriage and the Uniform Probate Code’s Redesigned¬†Elective Share-Why the Partnership Is Not Yet Complete, Seplowitz, R. C. (1991). Ind. L. Rev.,¬†25, 1. The paper starts with the investigation of the historical background of popular doctrines on antenuptial transfers in scams of marriage right and its relationship to the elective share. The author discovers that this approach has irreplaceable views about intentional and unintentional spousal disinheritance. Despite all this, the approach is still rejected in this paper. The paper then explores the various statutory approaches that can serve as substitutes to the common law doctrine.

Share¬†and¬†Share¬†alike-The UPC’s¬†Elective Share, Gary, S. N. (1998).¬†Prob. & Prop.,¬†12, 19. The National Conference of Commissioners on Uniform State Laws published an updated version of the Uniform Probate Code (UPC) in 1990. One of the major changes to the revision was the elective share section. Nine states have already implemented the 1990 UPC with some modifications and variations. This paper analyzes the elective share laws adopted since 1990, comparing them with UPC and comments on the extent to which uniformity has been achieved.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†

Community Property v. The Elective Share, Turnipseed, T. L. (2011). La. L. Rev., 72, 161. As with every law, the community property no doubt has its faults. But this article argues that elective law should be discarded in favor of community property. It compares and contrasts the features of community property, elective share, and separate property. The elective share can trace its history down to dower and curtesy. The article gives examples of literal situations that occur in elective share.

The Treatment of Trust and Other Partial Interests of the Surviving Spouse Under the Redesigned¬†ElectiveShare¬†System: Some Concerns and Suggestions, Bloom, I. M. (1991).¬†Alb. L. Rev.,¬†55, 941. The concerns on the effect of the reformed elective share system on the living spouse who owns a part of the property are addressed in this article. It focuses specifically on the surviving spouse’s right as the life-long beneficiary of a trust. The author’s review is written with the hope that modifications can be done to the reformed elective share system’s treatment of partial owners.

Alabama’s¬†Elective Share: It’s Time to Adopt the Partnership Theory of Marriage, Fields, L. (1994).¬†Ala. L. Rev.,¬†46, 797. There are two types of state in American Marital Property law: Community property states and separate property states. Alabama practices separate property. In separate property states, marriage does not affect the ownership of property and the spouses are only entitled to what they earn. This is significantly different from marriage in community property states, which accept that properties earned during the course of the marriage are fruits of the marriage and labor of both spouses.

Partners in¬†Life¬†and at Death: The New Minnesota¬†Elective Share¬†of a Surviving Spouse Statute, Forsberg, W. (1997). Wm. Mitchell L. Rev.,¬†23, 377. Minnesota adopted the update elective share law on January 1, 1996. The law limits the deceased spouse’s ability to disinherit his or her living spouse by allocating a portion of the deceased’s estate to the spouse. This paper comments on the deliberations that led to the 1993 changes in the Uniform Probate Code and demonstrates how Minnesota’s updated elective share law incorporates these changes.

The interrelationship between the elective share and the marital deduction, Litman, D. (2005). Real Prop. Prob. & Tr. J., 40, 539. The aim of the article is to clearly distinguish the relationship between elective share and Federal Estate Tax Marital Deduction. It concentrates on two major problems: (1) whether the elective share received by the living spouse is subject to marital deduction, and (2) whether a marital trust will negate the elective share and reduce that amount paid as part of the elective share.

Planning for family asset transfers, Edwards, K. P. (1991). Financial Counseling and Planning,¬†2(1), 55-78. Planning an estate is one of the major aspects of an individual or family’s financial management and planning. However, studies have shown that an individual’s knowledge of estate planning is limited. This paper comments on the result of research on the transfer of assets among a group of Utah men and women. Regardless of the sex, the subjects had little knowledge of estate planning despite knowing it was a valuable part of family financial planning.

Elective Share¬†Statutes: The Right to Elect Against Property Subject to a General Power of Appointment in the Decedent, Mahoney, M. M. (1979). Notre Dame Law.,¬†55, 99. Elective share adopted by many states protects the financial rights of the surviving spouse by creating a forced share of the deceased”s estate. To do this the state must determine what property is accessible to the spouse. This article posits that all properties subject to the power of the deceased at the time of death should be included in the elective share.

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