Delzer, Coulter & Bell, P.A.

If you are dissatisfied with the inheritance you receive from your deceased spouse, you may file an election to seek an “elective share” of your deceased spouse’s “elective estate”. The determination of the value of the elective estate requires complete information on all assets that pass as a result of your deceased spouse’s death. The elective estate includes assets held in Revocable Trusts, joint tenancy property, accounts held “in trust” or payable upon death to designated beneficiaries, transfer on death accounts, retirement benefits, and gifts made within one year of death. To determine the amount, if any, that you may receive as an elective share, there must be a determination of the assets you will receive as a result of your spouse’s death. If the amount you are to receive is less than thirty percent of the elective estate, you may file an election for your elective share for the difference. You have from six months to two years following death to file the election, depending on notices you receive from your deceased spouse’s estate.

Your elective share is in addition to the interest you are automatically granted in homestead property and exempt personal property. The laws and computations regarding the elective estate and elective share are quite involved. If you wish to consider seeking an elective share of your spouse’s estate, it is important to promptly consult an experienced attorney practicing in the area of estate administration law.

Often couples who marry later in life prefer to have an attorney prepare a marital agreement by which each spouse to the marriage waives elective share, homestead and other rights granted by law to a surviving spouse.