5) that an election to take an
elective share must be filed within the time provided by law.
The
Elective Share Review Committee focused on updating a surviving spouse's right to estate assets.
Ever since the statutory
elective share replaced dower and curtesy, courts have been trying to expand the property subject to the spouse's
elective share.
Specialties are Probate, trusts,
elective share trust, wills, power of atty, Medicaid, VA, and LTC planning.
This third edition offers expanded coverage of the
elective share doctrine of the Uniform Probate Code, analyzing the Code's harmless error approach versus the traditional strict compliance approach.
Disinheriting a spouse is more complex because of
elective share statutes; most states require the affected spouse to sign a waiver at the time the will is signed stating that he or she is consenting to the disinheritance.
Previously, the statutory
elective share extended only to the decedent spouse's probate estate.
In addition, if properly established, trust-held assets are protected from state
elective share statutes (which allow the spouse to "elect against the will" and claim up to one-third of the breadwinner's assets potentially, destroying the asset distribution plan).
A number of states grant a surviving spouse the right to take an
elective share of the decendent spouse's estate.
However, before pursuing such an agreement, local law should be consulted to ensure that such restrictive agreements are enforceable, especially in light of a surviving spouse's
elective share statute or other statutory authority that gives the surviving spouse the right to select the S corporation stock from the decedent's estate.
However, in estates that experience significant liquidity problems,
elective share issues, creditor problems, or friction between the beneficiaries, the issue may need to be squarely addressed.
