In trying to overcome certain perceived problems of the Florida elective share
law, The Florida Bar has proposed major changes to the elective share
law over the past several years.
For instance, can the elective share
be satisfied with a disposition in trust?
The Massachusetts spousal elective share
Joint ownership does not escape the protections for a surviving spouse under the elective share
As a replacement for the dower protection of the spouse under English and early-American law, (1) by the early part of the twentieth-century most states enacted forced share (or elective share
) statutes to prevent disinheritance of the spouse.
Most states have enacted legislation that replaces dower and curtesy with a "spousal right of election," which gives a surviving spouse a choice: Either accept the provisions of the decedent spouse's will, or ignore the will and elect instead to receive a "statutory elective share
." Previously, the statutory elective share
extended only to the decedent spouse's probate estate.
In addition, if properly established, trust-held assets are protected from state elective share
statutes (which allow the spouse to "elect against the will" and claim up to one-third of the breadwinner's assets potentially, destroying the asset distribution plan).
A number of states grant a surviving spouse the right to take an elective share
of the decendent spouse's estate.
Some states have a provision called "elective share
," or automatic spousal benefits.
191, 15, the so-called spousal elective share
statute, as it relates to a surviving spouse's ability to force a sale of real estate to satisfy the value of her elective share
In 2013, the Real Property, Probate and Trust Law (RPPTL) Section of The Florida Bar convened an ad hoc committee to take a fresh look at Florida's elective share
laws, (1) with the objective of identifying and remedying certain issues that, over the years, practical experience proved to be in need of change.
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.