Right of election

By: Martin M. Shenkman, CPA, MBA, JD

This is also called the "spousal right of election". It is a right given to a surviving spouse under state law to claim a specified minimum percentage of the late spouse's estate. So if you die and leave your husband nothing under your will, he may have the right under state law to demand a certain portion of your assets. In very general terms many states use a paradigm of 1/3rd of the estate. However, the differences from state to state are substantial. Many states also use a concept called "augmented estate" which means that the state statutes add to your estate assets you may have given away or otherwise disposed of in determining the assets your surviving spouse can choose to claim an interest in (called "elect against"). In many prenuptial agreements this statutory right to elect against an estate is waived.

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