ABA Family Legal Guide

Estate Planning

Wills

What share will my spouse receive under state law?

If a husband or wife dies with a will that makes no provision for the surviving spouse, or conveys to that person less than a certain percentage of the deceased spouse's assets, the surviving spouse can take a statutorily defined elective share of the estate. This means he or she can choose to accept the amount allowed by law, usually one-third or one-half of the estate.

The surviving spouse doesn't have to take an elective share of the estate—it's his or her choice. If he or she doesn't exercise the choice, the will stands and the property is distributed as stated in the will.

Elective share provisions are troubling to many people entering into second marriages, particularly late in life, because the surviving spouse of only a few years would be eligible to take up to one-half of the deceased spouse's property, even if the deceased spouse wanted it to go to his or her own children. Recent revisions to the Uniform Probate Code provide a sliding scale for surviving spouses who take against the will. Under this approach, which a few states have adopted, the longer the marriage, the higher the elective share. If the marriage lasted only a few years, the percentage could be quite low, minimizing one source of worry for older couples.