Spousal Rights and the Elective Share of an Estate
A spouse has a right to claim some portion of the deceased’s estate regardless of the will. Known as an elective share, spousal right laws favor the surviving spouse. Frequently this becomes an issue when married couples simple forego the nuisance of a divorce and live separate lives although legally still joined. The spouse doesn’t have to “contest” the will, but instead opts for their “forced share” as the estate passes through probate. If you are a widow, widower, or the surviving member of a family surprised by the appearance of a surviving spouse, hire a lawyer to help you through this process.
All states have their own laws about dealing with a “widow’s share.” California is a community property state and this allows the surviving spouse up to 50% of the community property. Of course defining community property can be tricky. Frequently courts will review the “augmented estate” to determine if the surviving spouse is due more than what appears as part of the estate asset list. Frequently, people will attempt to distribute assets prior to death in an attempt to prevent a disinherited spouse from collecting their share of the estate by law. The augmented estate takes these pre-death distributions into account when determining the spouse’s share.
Spousal rights generally cause significant contention with the existing beneficiaries. Generally, if a spouse is claiming his or her elective share, he or she is doing so to take more out of the estate than stated in the will. The best way through these circumstances is with an estate attorney ensuring the assets are distributed according to law — no less, no more.
