An elective share is a term used relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It has also been called a widow's share, statutory share, election against the will, or forced share.
The election rights of a spouse are governed by state laws, which vary by state. Under such laws, the surviving spouse has historically had the option of either:
1. Accepting what was provided to him or her pursuant to the decedents will; or
2. Electing to take a fixed portion of the decedents probate estate property.
The rationale for granting an election to the surviving spouse is to ensure that the surviving spouse receives at a minimum amount of the decedents wealth which, in many cases, was accrued during the marriage.
Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between 1/3 and 1/2 of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor children. Some states also reduce the elective share if the surviving spouse is independently wealthy.
