Elective share

The law of wills and trusts
Part of the common law series
Inheritance
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Types of will
Holographic will  · Will contract
Living will
Joint wills and mutual wills
Parts of a will
Codicil  · Attestation clause
Incorporation by reference
Residuary clause
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Contesting a will
Testamentary capacity  · Undue influence
Types of Trusts
Express trust  · Asset-protection trust
Protective trust  · Spendthrift trust
Charitable trust  · Honorary trust
Resulting trust  · Constructive trust
Special Needs trust
Doctrines governing trusts
Pour-over will  · Cy pres doctrine
Other areas of the common law
Contract law  · Tort law  · Property law
Criminal law  · Evidence

An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It may also be called a widow's share, statutory share or forced share.

The elective share is the modern version of the English common law concepts of dower and curtesy, both of which reserved certain portions of a decedent's estate which were reserved for the surviving spouse, in order to prevent them from falling into poverty and becoming a burden on the community.

Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between 1/3 and 1/2 of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor children. Some states also reduce the elective share if the surviving spouse is independently wealthy.

If the spouse claims the elective share, they get that amount, but nothing else from the estate. Obviously, there would be no point in seeking an elective share if the surviving spouse has already been willed more than they would receive under the statute. Furthermore, some assets held by the estate may be exempt from becoming part of the elective share, so their value is subtracted from the total value of the estate before the elective share is calculated.

Some states also permit children of the deceased to claim an elective share.