What’s Wrong About the Elective Share “Right”?

Abstract

This Article examines one form of property rights available to a surviving spouse, the elective share. The elective share serves as an override to a testator’s stated intent by allowing the surviving spouse to choose to take a portion of the decedent’s estate — even if the will explicitly disinherits the surviving spouse. The Article analyzes a recent five-year period of state cases raising elective share issues with the goal of determining the circumstances under which an elective share is most likely to be contested.

The reported elective share disputes typically involve a subsequent spouse challenging a will that leaves property to an earlier family. The petitioners are almost invariably women. The length of the marriage ranges from a few months to decades, and some of the cases involve waiver of the share, some involve estranged spouses, and a few involve marriage fraud. Disputes over the elective share illustrate family tensions, rarely involving parents against joint children, and more frequently pitting a surviving spouse against the decedent’s earlier families.

The Article provides an empirical assessment of the current rationales for the elective share and suggests revisions to existing elective share approaches that reflect both differing theories of what values marriage should represent and the changing demography of marriage and remarriage.

Keywords: Trusts and estates, family law, elective share

JEL Classification: K10, K36