Spousal Elective Share

In a previous post, I discussed the circumstances under which a surviving spouse could be completely disinherited by the decedent spouse.  There are other circumstances where the surviving spouse can elect for a specific share of the decedent spouse’s testate or intestate estate that the spouse would not otherwise be entitled to, but for the election. This is referred to as the surviving spouse’s elective share.

The elective share is an amount equal to the value of the elective share percentage of the augmented estate. This percentage is determined by the length of time the spouse and the decedent were married to each other. In Minnesota, for example, if the spouses were married for one year but less than two years, then the surviving spouse can elect to three percent of the augmented estate. This percentage increases up to 50% when the spouses are married for 15 years or more.

The augmented estate is comprised of the sum of the values of all the decedent’s real and personal property, wherever situated, that constitute:

• the decedent’s net probate estate,
• non-probate transfers to others,
• non-probate transfers to the surviving spouse and,
• the surviving spouse’s property and non-probate transfers to others.

The augmented estate is reduced by funeral and administration expenses, the homestead, family allowances and exemptions, liens, mortgages, and enforceable claims.

If the surviving spouse does elect their share, then those that have received property out of the decedent’s estate are liable to make a proportional contribution toward satisfaction of the surviving spouse’s elective share or supplemental elective share amount, which is generally around $50,000.

The surviving spouse’s right of election may be exercised only during the surviving spouse’s lifetime. Therefore, if the surviving spouse dies prior to making an election, the elective share is not available to the surviving spouse’s estate.

Process

The election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent’s death, or within six months after the probate of the decedent’s Will, whichever limitation later expires.

The surviving spouse must give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The court then will determine the elective share amount and order its payments from the assets of the augmented estate or by contribution from those that have received assets from the estate.

If you have any questions regarding elective share, be sure to consult with an attorney in your area.