Spousal Elective Share for Widows & Widowers

August 17, 2022 in Uncategorized | MARTIN WREN, P.C. | LEAVE A COMMENT


Different states have different laws but in some states, Florida for example, a surviving spouse has a statutorily protected right to a portion of their deceased spouse’s estate. If the decedent leaves the surviving spouse too little or nothing at all, the spouse may use the spousal elective share to request a larger distribution. 

There are many different nuances of estate planning law and many widows and widowers feel that it’s important to have someone who knows the law, who can represent you in court if the need to protect your legal rights should arise.

If you are in the unfortunate situation of having lost a spouse, even if they did not leave a will, an estate planning attorney such as one from Bedy Law, PLLC can help you to understand your legal rights to your recently departed spouse’ estate.

Regardless of any planning you mays have done, your surviving spouse may choose an elective share as outlined below:

  1. The elective share amount is 30% of the elective estate
  2. The elective estate includes:
  • The Probate estate (assets that must pass through probate)
  • Homestead
  • Joint accounts (even joint with people other than the spouse), pay-on-death accounts (even if the beneficiary is NOT the spouse), Totten Trusts 
  • Property held in joint tenancy by the entireties 
  • The decedent’s interest in the net cash surrender value of a life insurance policy (even if the spouse is not the named beneficiary)
  • Pensions and retirement funds
  • Transfers made within 1 year of death
  • Property passing directly to the spouse
  1. Elective share can be waived by written agreement
  2. Elective share can be barred under certain circumstances
  3. The elective share must be filed within 6 months after the probate notice of administration is served on the surviving spouse
  4. If the surviving spouse is not a co-owner of the marital residence and the decedent left the residence to other heirs, the surviving spouse is also entitled to a 50% interest in the marital residence or a life estate, meaning the surviving spouse can live in the residence for the remainder of their life or sell the property and retain 50% of the proceeds. 

Considering the above, it would be beneficial to have an experienced estate planning attorney review your plan and discuss the best options to achieve your goals. While you are not legally obligated to have an attorney at your side during this difficult time, many people find it a comfort knowing that their legal rights are being protected so that they can have the time and peace of mind to grieve and heal.

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To speak with one of our attorneys, please call us at (434) 817-3100.

Our Virginia personal injury lawyers at MartinWren, P.C. have a statewide practice and offer free consultations at a time and location that is convenient for you.  We will gladly meet with you at your home or at the hospital, even on nights and weekends.


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