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:
What is Your Spouse Entitled to When You Die? Spousal Elective Share Overview:
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.
Our experience with Klenk Law has been exceptional. We’ve had help with estate planning and pre-nuptial agreements. They really take the time to explain everything and let us know our options. All of the staff are very professional, courteous and knowledgeable. They are very prompt with responding to calls and messages. We will continue to use them and recommend to friends and family.
Klenk Law was professional in every way. I have already recommended your services to a couple of friends and business associates. I want to personally say "thank you" to the entire staff at Klenk Law.
Daniella was fantastically wonderful. A joy to be around and filled our conversations with so much educational knowledge. I’ve learned so much from her about being a great person and I can’t wait to work with her again
Can't recommend Attorney Daniella Horn and paralegal Jackie Mettinger enough. They have been incredible to work with through the administration of my aunt's estate. They are knowledgable, patient, kind, and always quick to respond, and not to mention super affordable. Thank you so much for all of your hard work. I will definitely be recommending you to anyone who needs this type of help in the future.
Overall I great experience with Daniella and the rest of her team to work with me for my fathers estate. Never was an issue that couldn’t be fixed. I highly recommend klenk Law firm.
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