Elective Share

In the realm of estate law, understanding the intricacies of property distribution upon an individual’s demise is of paramount importance.

One crucial aspect of estate law that demands attention is the Elective Share.

This comprehensive blog post delves into the Elective Share’s concept, significance, and implications.

This will also shed light on this vital legal provision.

The Elective Share Defined

The Elective Share is a legal concept established within the context of estate law.

It aims to safeguard the financial interests of a surviving spouse upon the death of their spouse.

This provision grants the surviving spouse the right to claim a predetermined portion of the deceased spouse’s estate.

This will be irrespective of the terms specified in the decedent’s will or other testamentary documents.

Determining The Elective Share

The precise calculation of the Elective Share varies from jurisdiction to jurisdiction.

Each state may have its statutes and regulations governing this aspect of estate law.

However, in a typical scenario, the Elective Share is often calculated as a fraction or percentage of the deceased spouse’s estate.

This is with the exact formula contingent on factors such as the length of the marriage and the existence of any children.

Example 1: The Elective Share In A Blended Family Scenario


Sarah and John, a couple in their 50s, both have children from previous marriages.

They create their wills to ensure their children inherit their fair share of their assets.


Sarah and John sit down with their estate attorney to discuss their wills.

They want to provide for each other in case one of them passes away, but they also want to ensure their children receive a portion of their estates.

In their state, there are elective share laws in place to protect the surviving spouse’s rights.

Sarah has two adult children, Emily and Daniel, from her previous marriage.

John has one adult child, Michael, from his previous marriage.

Sarah and John have accumulated significant assets during their marriage, including a house, savings, and investments.

Elective Share Application:

Sarah and John decide to leave a portion of their estates to their surviving spouse while ensuring their children receive their fair share. Their state’s elective share law requires that a surviving spouse is entitled to a certain percentage (usually one-third to one-half) of the deceased spouse’s estate, regardless of what the will says.

In this case, if John were to pass away first, Sarah would have the option to take her elective share, which could be, for example, one-third of John’s estate.

Example 2: Elective Share In A Community Property State


Linda and David, a married couple in their 60s, have lived in a community property state for most of their marriage.

They want to make sure their estate plan reflects their community property status while also addressing their individual wishes for their assets.


Linda and David have been married for 30 years and have acquired various assets during their marriage, including a family home, investments, and a joint bank account.

They have two adult children together, Sarah and Matthew.

Elective Share Application:

In a community property state, most property acquired during the marriage is considered joint property, meaning both spouses have an equal ownership interest in it. 

When one spouse passes away, the surviving spouse typically has certain rights to the community property, even if it’s not specified in the will.

Linda and David want to ensure that their children, Sarah and Matthew, receive a portion of their estate when they both eventually pass away. However, they also want to provide for each other during their lifetimes.

Because they live in a community property state, elective share laws may not be as relevant as in common law states. In community property states, the surviving spouse typically already owns an equal share of the community property, so the elective share concept mainly applies to separate property (property acquired before the marriage or by gift or inheritance).