Elective Share: A Surviving Spouse's Right to Override a Will

What the Elective Share Is

The elective share is a statutory right that allows a surviving spouse to claim a minimum percentage of the deceased spouse's estate, regardless of what the will says. It exists specifically to prevent one spouse from completely disinheriting the other.

If a will leaves the surviving spouse nothing — or significantly less than the statutory minimum — the spouse can "elect against the will," overriding the testator's written wishes and claiming the percentage guaranteed by state law.

This right is separate from contesting the will's validity. You're not arguing the will is invalid. You're exercising a legal right to take a different share than the one the testator intended.

How Much the Surviving Spouse Gets

The percentage varies by state. Most states set the elective share between one-third and one-half of the estate.

Under the Uniform Probate Code (adopted in various forms by about 18 states), the percentage increases with the length of the marriage. A surviving spouse married for one year might receive 3% of the augmented estate, while a spouse married for 15 or more years receives the full 50%.

Other states use a flat percentage. New York guarantees the surviving spouse the greater of $50,000 or one-third of the net estate. Florida provides 30% of the elective estate, which includes certain lifetime transfers and jointly held assets.

What Counts as Part of the Estate

This is where elective share law gets complicated. Many states have expanded the definition of the "elective estate" beyond probate assets to include revocable trusts, joint accounts with rights of survivorship, payable-on-death accounts, and certain lifetime transfers.

The expansion is designed to prevent a testator from moving assets outside the probate estate specifically to defeat the surviving spouse's elective share. Without this broader definition, a spouse could simply transfer everything into a revocable trust and leave the probate estate empty.

When to Elect Against the Will

The deadline is state-specific. In Florida, the election generally must be filed by the earlier of six months after service of the notice of administration or two years after the decedent's death, unless an extension applies. Missing the applicable deadline can mean accepting what the will provides.

Filing the election is a formal process. The surviving spouse files a written election with the probate court, and the estate's distribution is recalculated to satisfy the statutory share. How the share is funded depends on the state's contribution and abatement rules; other beneficiaries' shares are not necessarily reduced proportionally.

Elective Share vs. Community Property

Nine US states use community property law instead of the elective share system: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In community property states, each spouse generally has a present one-half interest in property classified as community property. The deceased spouse can generally dispose of only their share through a will; separate property and other exceptions are governed by state law.

If you live in a community property state, the elective share concept doesn't apply — your protection comes from the community property system itself.

Strategic Considerations

Electing against the will isn't always the best financial choice. If the will leaves the surviving spouse specific valuable assets — the family home, for example, or a life insurance policy — those specific bequests might be worth more than the statutory percentage.

The election also affects the surviving spouse's relationship with other beneficiaries. Children, stepchildren, and other family members see their shares reduced when the elective share is invoked, which can create lasting conflict.

If you're considering electing against a will, our Contesting a Will toolkit includes a decision framework for comparing your options and understanding the financial implications of each path.