One of the main purposes for making and leaving a will is to guide the administration of the estate of the testator — the person who made the will. A will should be written in language that is clear and indisputable. Alas, the language in a will may be unclear or vague. This article discusses the protection of the testator’s surviving spouse from complete disinheritance.
In England in the middle ages, the spouses of decedents who owned real property were protected against disinheritance by the existence of what were known as marital estates. After her husband’s death, the surviving wife was given one third of her husband’s property owned during the marriage, for the rest of her life. The surviving wife’s marital estate was known as dower. After his wife’s death, the surviving husband was given all of his wife’s property owned during the marriage. The surviving husband’s marital estate was known as curtesy. Until either the husband or the wife died, these rights were known as being inchoate, meaning potential.
The existence of marital estates complicated the transfer of property. To avoid the confusion cause by marital estates, most states gradually eliminated marital estates as the mean’s of protecting a surviving spouse from complete disinheritance.
Instead of using marital estates, most states now grant a surviving spouse the opportunity to take a certain share of the their deceased spouse’s estate. The share is known as an elective share. Where the deceased spouse died without a will, the opportunity to take an elective share is known as statutory heirship. Where the deceased spouse left a will, the opportunity to take an elective share is known as the right to elect against the will.
In most states, after the testator dies, the testator’s surviving spouse can elect to take either what the was left to the surviving spouse in the testator’s will, or a elective share of the testator’s net estate. The elective share is usually one-third of the testator’s estate, or more if the testator has no children. In some states, the amount of the elective share depends on the duration of the testator’s marriage to the surviving spouse.
Notice that even if the testator’s will left no property to the surviving spouse, the surviving spouse can elect to take a elective share. Another way of saying the same thing is that a surviving spouse who elects against the will can be disinherited only to the extent of his or her right to elect against the will.
The big exception to spousal election is that a spouse may have waived his or her right to elect against the will by entering into a prenuptial agreement or a separation agreement.
In some states, community property laws protect a surviving spouse from disinheritance. Community property laws usually eliminate the need to elect against a will.
The details of the right, if any, of a surviving spouse to elect against a will, vary from state to state. Your lawyer can advise you if there is a right of spousal election in your state and, if so, how it operates.