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The spouse may, of course, choose to use the right of election instead.
A spouse can be legally disinherited by a waiver of a spousal right of election or by a nuptial agreement, which can be executed before the marriage (prenuptial) or after the marriage (postnuptial).
when the donor first becomes domiciled in a jurisdiction whose law provides a right of election that could be satisfied from assets of the trust; or
when the state enacts a new law creating a right of election.
That is, Revenue Procedure 200524 states that the IRS will not require a spousal waiver of right of election in existing trusts.
DONOR MOVES TO A JURISDICTION that has a right of election that can affect the trust
If a surviving spouse remarries, the new spouse may get control of the property or, at least, may acquire a right of election to take a prescribed share (as noted above).
The most sweeping change has eliminated the use of a trust to satisfy the right of election.
1) The surviving spouse's right of election is equal to the greater of $50,000 or one-third of the net estate.
2) The right of election to which a spouse is entitled is reduced by the capital value of any interest passing to the spouse by intestacy, will, or testamentary substitute.
3) For decedents dying after August 31, 1994, the right of election cannot be satisfied utilizing a trust where the spouse has an income interest (e.