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You might assume that as the surviving spouse, you’ll automatically inherit most or all of your spouse’s assets. However, the reality can be quite different, especially if the deceased had other heirs, a significant amount of money in a trust, or a will that determines how the estate is to be distributed. And this is where the spousal elective share comes into play – a legal right that allows you, as the surviving spouse, to claim a portion of the estate, regardless of the will. It is meant to ensure that you are not left with nothing when your spouse passes away.
What Is the Spousal Elective Share?
The elective share of the spouse is there to safeguard an equitable protection intended to preclude the surviving spouse from taking nothing. A statutory percentage (commonly 30% to 50%) of the estate of the deceased spouse is found in most states which the surviving spouse may elect as an alternative to what the will provided him or her. This is to prevent a spouse from being left with nothing, particularly in the case of remarriage, complicated relationships or surprise changes in estate planning.
Real-World Examples of When the Elective Share Becomes Important
1. The Disinherited Spouse Imagine, John and Mary a married couple. John has children from a previous marriage and decides to give all of his estate to them since Mary has enough financial assets of her own. When John dies, Mary realizes that she has been left out of the Will. Instead of accepting the fact that she has been disinherited, Mary has an option. She can use her elective share to make sure that she gets a part of John’s estate as per the law.
2. Claiming Your Elective Share When Deceased Has a Trust A deceased spouse may try to avoid their spouse receiving their elective share by placing the assets in a trust, out of the probate estate. For example, David moves most of his wealth into an irrevocable trust, naming his children as beneficiaries and leaving his wife Susan with very little money. However, in this situation, Susan can claim estate assets as part of her elective share.
3. A Small Inheritance Doesn’t Add Up For example, Rachel inherited a small amount of money from her husband, Mark, upon his passing, even though he was quite wealthy. If her inheritance under the Will is less than the elective share amount, she can file a spousal election to allow her to have a larger share. This would enable her to better support herself.
How a Law Firm Can Help Protect Your Rights
The elective share of the estate is not always a straightforward process, especially if there are trusts, multiple heirs or family disputes. A competent estate planning and probate lawyer can:
1. Assess the Estate to find out which assets are part of the elective share and whether any transfers were made to avoid your rights.
2. Negotiate with Heirs to avoid legal battles by facilitating negotiations and coming up with mutually acceptable decisions.
3. Challenge Invalid Estate Planning Techniques – If assets were moved to avoid the elective share, then legal action may be required to include them in your rightful claim.
4. Compliance with Deadlines – Most elective share claims are made within a certain period of the deceased’s death. It is important to act quickly.
Final Thoughts
If you feel that your spouse’s estate plan leaves you with little or no provision, then you don’t have to feel like you are alone. The spousal elective share is a protection that ensures that the surviving spouses get a fair share of the estate. If you are planning for the future or if you have recently lost your spouse, seeking the help of an experienced estate planning lawyer is critical in order to protect your assets. If you need assistance with filing the spousal election or have concerns regarding your rights as a surviving spouse please do not hesitate to contact Sallen Law, LLC to find out more.
