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Home > Blog > Estate Planning (Wills, Trusts, Deeds, Business Succession) > Elective Shares and Surviving Spouses in the Probate Process

Elective Shares and Surviving Spouses in the Probate Process


When you make or create a will or estate plan, you assume it is solid, and that your wishes, as expressed in that plan, will be carried out to the letter. And that is mostly true…except for one area where your will or estate plan can be overridden: the elective share.

What is an Elective Share?

An elective share is the part of your estate that your surviving spouse gets (or can elect to get), no matter what—even if the words and terms of your will may say otherwise. The elective share overrides anything to the contrary that you write in your will.

Even if you do leave property to your surviving spouse in your will, if the elective share would provide the surviving spouse with more than what you left, the surviving spouse can take the elective share, instead of the lesser amount that you expressly left him or her.

How Much Does the Surviving Spouse Get?

The elective share includes more than what is included in probate. So, for example, some assets will bypass the probate process. Take, just as an example, a “payable on death account” (POD). Because the POD is automatic, it happens immediately on death, and is never a part of your probated estate.

However, it is considered your asset for the purpose of your surviving spouse’s elective share, and he or she is entitled to a part of that POD account, even though it isn’t actually part of your estate, or subject to being probated by the probate court.

The amount of the elective share is 30% of the elective share assets. However, the total amount will be reduced by the liabilities of the deceased.

What is a Pretermitted Spouse?

A pretermitted spouse can get even more than an elective share. A pretermitted spouse is a spouse that married the deceased, after the will was made.

This can be as much as half the estate. However, with a pretermitted spouse, the assets subject to being distributed, are only those assets that are part of the probate estate, handled by and distributed by the probate court—not the entirety of the deceased’s assets, the way the elective share is calculated.

Other RIghts and Privileges

Surviving spouses have other rights as well, which will override any contrary terms of a written will.

For example a spouse can get up to $18,000 to help the spouse survive while waiting for the probate court to administer the will.

Note that many of these rights go to a spouse, regardless of the status of the marriage. In other words, spouses that are estranged, living separately, or who were “about to be divorced” are still spouses. This can lead to situations where a legal spouse gets assets that the deceased may not want him or her to get.

Prenuptial agreements, postnuptial agreements and actually going through with a divorce, if that’s what the spouses want, can help alleviate this potential problem.

Questions about your estate plan, or about the probate court? We can help. Call the West Palm Beach estate planning lawyers at The Law Offices of Larry E. Bray today.




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