elective share


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elective share

The ability of a surviving spouse to elect to take a specified percentage of the decedent's estate rather than the amount left by the will.Most states make some sort of provision so that a surviving spouse cannot be completely disinherited.The vehicle may be the common law rights of curtesy (the widower's share) or dower (the widow's share). Because of archaic concepts about the relative needs of surviving spouses, dower and curtesy did not provide the same benefits to husbands as to wives. As a result, many states passed statutes modifying the rules or even completely abolishing them in favor of a statutory scheme. The statutory system usually allows a surviving spouse to elect between taking what was provided in the will or taking a certain preset percentage of the decedent's estate.

References in periodicals archive ?
The Uniform Principle and Income Act Committee initiated a review of the allocation of expenses between life tenants and remainder-men, the impact of an elective share trust, and jurisdiction over discretionary powers.
2) The early version of these statutes, sometimes referred to as the "original" elective share statutes, provided that the surviving spouse receives a portion (usually one-third) "of the decedent's estate.
To overcome these deficiencies, most states allow a surviving spouse to claim an elective share that is based upon a fraction of the decedent spouse's augmented estate.
However, two examples that immediately come to mind are the elective share computation and the effect of homestead status on intestacy.
The following [begin strikethrough]must be[end strikethrough]are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.
Effective June 28, 2005, the trustee of a CRT must retain a copy of a waiver by the spouse of his or her elective share or right in the CRT, if permitted by state law.
Similarly, the stopgap rights of a disinherited spouse, or the elective share protections, apply as well.
Thus, the proposed regulations provide that substantially separate and independent shares of different beneficiaries are to be treated as separate estates for purposes of computing DNI; further, a surviving spouse's statutory elective share is a separate share.
Elective Share, Homestead, and Statutory Entitlements under Florida Law
An election to take the elective share may be filed by the surviving spouse, or on behalf of the surviving spouse by an attorney-in-fact or guardian of the property of the surviving spouse.
If the well spouse dies first and does not leave the surviving spouse enough to qualify as that spouse's elective share (the greater of $50,000 or one-third of the estate), the local Medicaid agency may start a court proceeding to have a guardian appointed for the surviving institutionalized spouse so that the guardian can then exercise that spouse's right of election.