Wills, Trusts, and Estates

Elective Share

In all separate property states but Georgia, a surviving spouse is entitled to some amount, usually one-third, of the decedent spouse's estate.

The UPC gives half of the marital property portion of the augmented estate.

Augmented Estate

The augmented estate is the decedent's probate estate and nonprobate transfers (including revocable trusts) plus everything the surviving spouse owns, minus some random things like funeral expenses. UPC § 2-204, UPC § 2-203.

Marital Property Portion

The surviving spouse elects one of two alternatives to get a portion of the augmented estate—either a percentage based on how long they were married (up to 100% at 15 years) or however the Model Marital Property Act determines it. UPC § 2-203.

Virginia gives part of a similar augmented estate, but not reduced based on how long people are married. The part is then one-third if the couple did not have surviving descendants, and one-half if they did.

The elective share is what the surviving spouse is entitled to. If she is entitled to $300k but her marital property of what she already owns is $200k, ⅔ of the share has been satisfied, so she gets $100k first from the estate.

  • Note that it's not how much she owned. Under UPC § 2-209(a)(2), it's the martial property portion of the amount included under UPC § 2-207.
  • Also, the full amount of property given to the surviving spouse outside of probate under UPC § 2-206.

Elective shares are taken pro rata from however it would be devised otherwise. Normal abatement rules do not apply. (Except how they would have been applied otherwise.)

Pay-on-death assets are often excluded by state statutes.

It is possible for a couple to waive these either before or during marriage by agreement if they had access to independent counsel and stuff.