Elective share is a statute that states what a widow/er may have as part of the deceased husband/wife’s property, as declared in that statute. The property in this statute can overpower the property left in a will. If the proportion of the property left is greater from the elective share, rather than what the wife would have been entitled to through the will, she can denounce the will. In this case, she would instead accept the property given to her through the elective share.
Elective share is thought to be the updated version of the curtesy and dower laws, in relation the proportionate estate a surviving spouse receives from the deceased one. The size of the estate can depend upon the state of its location and pertaining laws. It is common, in a good number of states, that the size of the estate received usually be between one third and one half of the total property. The elective share can also pertain to surviving children, not just the spouse. This is where the difference with curtesy and dower comes in mainly, and the reason for its more modern approach.
Instead of focusing solely on a certain spouse, the law has been updated to combine both spouses and the children as well. In the case of being divided among a spouse and child, the elective share portions would significantly be adjusted to a lesser amount to allow for proper distribution. It is not uncommon that a state will also diminish the elective share to a certain extent if the surviving spouse is seen to be financially prosperous on their own.
The state regulates the percentage received as mentioned before, but also other entitlements. For example, some states choose to only grant the spouse their elective share, and deny the possibility of any other gifts or inheritances from a will. This means they give up the right to such items, by accepting the elective share. However, this is not common in all the states. Others do allow that they take the elective share along with gifts from the will that will remain unaffected.
The main reason for elective shares is to provide a spouse with a specific amount of an estate (property, assets, etc.) that is proportionate to what they should receive. This can avoid issues with a spouse receiving more than they are entitled to, giving away such assets.
Again, the spouse may have the choice of taking an elective share over the will, or the will over the elective share. They will be allowed to take the one that has granted them more, but cannot take both. This provides a “fair” way of dealing with the estate of the deceased among other family members, and friends, and prevent the spouse from overtaking too much estate.
