An elective share is a term used in

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law relating to

inheritance Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...

, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's

will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and will ...

. It may also be called a widow's share, statutory share, election against the will, or forced share.

Function and operation

The elective share is the modern version of the

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common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

concepts of

dower Dower is a provision accorded traditionally by a husband or his family, to a wife for her support should she become widowed. It was settled on the bride (being gifted into trust) by agreement at the time of the wedding, or as provided by law. ...

and

curtesy Courtesy tenure (or curtesy/courtesy of England) is the legal term denoting the life interest which a widower (i.e. former husband) may claim in the lands of his deceased wife, under certain conditions. The tenure relates only to those lands of ...

, both of which reserved certain portions of a decedent's estate which were reserved for the surviving spouse to prevent them from falling into poverty and becoming a burden on the community. Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between one-third and one-half of all the

property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...

in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of

minor Minor may refer to: * Minor (law), a person under the age of certain legal activities. ** A person who has not reached the age of majority * Academic minor, a secondary field of study in undergraduate education Music theory *Minor chord ** Barb ...

children. Some states also reduce the elective share if the surviving spouse is independently wealthy. In some jurisdictions, if the spouse claims the elective share, they get that amount, but nothing else from the estate. In other states, claiming an elective share has no effect on gifts under a will or through a trust (though things given by will or trust may fulfill in part the elective share portion). Obviously, there would be no point in seeking an elective share if the surviving spouse has already been willed more than they would receive under the statute. Furthermore, some assets held by the estate may be exempt from becoming part of the elective share, so their value is subtracted from the total value of the estate before the elective share is calculated. Some states also permit children of the deceased to claim an elective share.

Calculation of the augmented estate

The elective share is usually calculated from assets beyond those in the probate estate alone, and the assets that are added together to make this calculation are called an augmented estate. This calculation serves two functions. First, it prevents the decedent from effectively disinheriting the surviving spouse by either

gifting A gift or a present is an item given to someone without the expectation of payment or anything in return. An item is not a gift if that item is already owned by the one to whom it is given. Although gift-giving might involve an expectation ...

away assets before death or by tying up assets in devices such as

trusts A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settl ...

joint account A joint account is a bank account that has been opened by two or more individuals or entities. Joint accounts are commonly opened by close relatives (such as by a married couple) or by business partners in an unincorporated business, but it can ...

s that benefit third parties after the decedent's death. Second, it prevents the surviving ''spouse'' from taking too large an elective share, if the decedent had already transferred substantial assets to the spouse. To accomplish that, the augmented estate is calculated by combining the value of the probate estate with such things as the value of gifts given by the decedent to third parties, property or accounts held in survivorship estates (such as a joint bank account, the proceeds of which would pass to the survivor among the account holders), the value of life insurance policies over which the decedent had the power to name the beneficiary, as well as gifts to the surviving spouse, and property held jointly with the surviving spouse. The elective share in

Florida Florida is a state located in the Southeastern region of the United States. Florida is bordered to the west by the Gulf of Mexico, to the northwest by Alabama, to the north by Georgia, to the east by the Bahamas and Atlantic Ocean, and to ...

gives a surviving spouse 30% of the elective estate, which includes all property owned by the decedent, property given away within one year of death, property inside a revocable trust (also known as a living trust), and pay on death accounts.Florida Statutes Sections 732.201-732.228
/ref> The Florida homestead property of the decedent, whether owned by the decedent solely or also with the surviving spouse, is included in the elective share calculation (this change was made in 2017).

References

{{reflist Wills and trusts