Right of Election

The prerogative of a surviving spouse to accept the provision the dead spouse made in the will or to disregard the will and claim the share specified by statute.

At death spouses commonly leave money and property to their surviving husband or wife. This estate is granted in a formal legal document known as a will, established by the deceased person (the decedent). But a will is not the final word on what happens to the decedent's estate. The surviving spouse may either accept the provisions of the will or choose an alternative called the right of election. In most states statutes specify a portion of the estate that the surviving spouse can elect to take instead of receiving the amount specified in the will. The right of election ensures that the spouse receives a fair share of the estate. The option sometimes provides a more favorable outcome for the spouse than accepting the property distribution in the will.

Historically, a surviving spouse has enjoyed protection under the law of wills. This protection is an exception to the freedom a person generally has to decide the disposition of her estate after death. By custom the maker of a will, or the testator, decides how her estate is to be divided. This freedom includes the right to disinherit even close relatives by leaving them nothing. Traditionally, however, the law has prevented a testator from disinheriting a spouse. The reasons for this intervention lie in the law's philosophical view of marriage as an economic union that entitles both parties to share in each other's material wealth, even after one spouse's death.

At COMMON LAW the surviving spouse was granted specific rights in the estate of the deceased spouse through the legal doctrines of dower and curtesy. These doctrines protected the spouse against total disinheritance. DOWER entitled a widow to claim a share of her husband's lands upon his death in order to support herself and her children. Curtesy functioned similarly for men. Most states have abolished these doctrines. In the few jurisdictions where they remain in effect, they are used primarily to solve problems arising when a spouse has died intestate, that is, without a will.

The right of election is available under most contemporary state laws. The surviving spouse may choose between accepting the terms of the will or receiving a share of the estate as defined by statute. This share is called a minimum or "elective" share. It varies in amount from state to state; generally, however, it is one-third of the estate if the decedent has children and one-half of the estate otherwise. Statutes may also specify minimum dollar amounts. Under a 1992 New York state law, for instance, the elective share is the greater of $50,000 or one-third of the net estate.

For some spouses, choosing the right of election is more advantageous than accepting the terms of the will. Besides protecting a spouse against total disinheritance, the right of election can be useful when the testator has left little to the spouse, when the testator has left the spouse's share in trust, or when other parties assert competing claims to the estate. Statutes establish different conditions and qualifications under which a spouse may claim the right to elect against the will; these range from estate and gift tax issues to marital status at the time of the other spouse's death.