If the deceased was married without a Prenuptial Agreement and never signed a Postnuptial Agreement limiting the surviving spouse, the surviving spouse cannot be legally excluded from an estate. The surviving spouse has the right to claim a portion of the estate. This right to request is the Elective Share or as it often called the Spousal Elective Share.
Historically, the community does not want to be responsible for widows. Therefore if the deceased husband had assets, the community wanted at least a portion to pass for the widow’s care. Currently, the rules apply equally to a husband or wife. The amount a surviving spouse can claim will depend on the state rules in effect on the decedents’ date of death.
A surviving spouse cannot wait forever. Each state has rules limiting the time for electing. If the spouse delays, the right of election lapses. Each surviving spouse and the executor of any estate having a surviving spouse should consult with an experienced Probate Attorney about this regulation. The surviving spouse should make sure the claim is timely and in the right form. The executor should make sure any claim made is proper. Further, a personal representative is personally responsible for errors, so make no distributions until you fully understands all claims! This includes the Elective Share.
If an administrator refuses to recognize a spouses’ Elective Share, or if the spouse makes an improper Elective Share demand, the issue becomes Probate Litigation. The Executor has the right to retain an Estate Litigation Attorney to defend the estate’s assets. Likewise, the surviving spouse has the right to retain an Estate Litigation Attorney to press the claim. If a settlement is impossible, the court will authorize evidentiary discovery. Discovery includes the right to depose witnesses, subpoena documents, and interview parties. This evidence is submitted to the judge using the court’s procedures at trial. Then the judge determines the claim’s validity.
Here are some blog posts answering questions clients, beneficiaries, and Trustees ask:
An Elective Share is a right that must be exercised, or it is lost. She waives her right if she fails to use her right in the statute of limitations period. I often am asked, “What happens if a husband or wife’s will gives little or nothing to his or her spouse.” Or, sometimes I am asked, “Can I disinherit my spouse.” The short answer is that unless the surviving husband or wife waived their rights in a prenuptial agreement, by being married to the deceased, they could not be involuntarily disinherited. By law, they have an “elective share.”
It is important to know, though, that this elective share must be “elected” or else it is seen as waived. You must defend your rights.
For example, if you are the surviving spouse of a Philadelphia resident, you can claim 1/3 of your spouse’s estate, but to secure this share you should have your Philadelphia estate lawyer file the proper election with the Philadelphia Orphans’ Court within 6 months of the later of the date of death or date of probate.
Before filing, though, you should weigh the pros and cons. There are events that might have disqualified you from claiming your share and by making the election you automatically disclaim all rights to certain assets you might have otherwise inherited. These rules can be difficult to understand.
If you are a surviving spouse of a person who disinherited you, and you are considering making a spousal election, you need an experienced estate litigation attorney to represent you.
If you have any questions about Spousal Elective Share or any other Probate topics, feel free to contact us to schedule a free consultation. Unlike other Probate Attorneys, we don’t take a percentage of the estate; we will bill hourly.
For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate law and planning techniques clearly and concisely. We make it easy for you to understand Spousal Elective Share and The Probate Process so you can make the best decisions for yourself and your family.