Spouse’s Elective Share (Portfolio 841)

Tax Management Portfolio, Spouse's Elective Share, No. 841 T.M., is a detailed study of the state law right granted to a surviving spouse to reject a deceased spouse's estate plan in favor of a statutorily determined share of that decedent's estate. 

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Tax Management Portfolio, Spouse's Elective Share, No. 841 T.M., is a detailed study of the state law right granted to a surviving spouse to reject a deceased spouse's estate plan in favor of a statutorily determined share of that decedent's estate. The portfolio analyzes the origin and policy underpinnings of the spouse's entitlement, compares the elective share to community property, and addresses the dissonance between a spouse's marital property entitlement on termination of a marriage inter vivos (dissolution) versus at death (the elective share).
State elective share statutes grant surviving spouses very different rights in the 41 noncommunity property states, with a relatively wide variation in the manner in which the right of election is calculated and then satisfied. The portfolio compares three representative state laws, one being the augmented probate estate concept contained in the Uniform Probate Code (UPC), which aims to divide marital property equitably between spouses. It ensures that a surviving spouse receives an amount equal to the state-mandated entitlement. It also helps to protect against a surviving spouse being disfranchised entirely by the decedent's plan. Some state laws make it easier, compared to the UPC, for a decedent to disinherit a surviving spouse, notwithstanding the statutory construct. Finally, the portfolio explains how many state laws make it possible for a surviving spouse to receive more than the share that the legislature or the decedent intended.
The portfolio also explores questions relating to the tax consequences of the right of election, mechanisms that are effective to preclude a surviving spouse from defeating the decedent's testamentary intent, conflict of laws and conflict of interest issues that must be considered, and the consequences of a spouse's election on other beneficiaries of the decedent's estate.
This Portfolio may be cited as Pennell, Cline, and Turnipseed, 841 T.M., Spouse's Elective Share.

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Christopher P. Cline, B.A., San Francisco State University; J.D., Hastings College of the Law; Fellow, American College of Trust and Estate Counsel; Past President, Executive Committee of Oregon State Bar Estate Planning and Administration Section's Executive Committee; Past President, Estate Planning Council of Portland, Inc.; member, Editorial Advisory Board, Tax Management Estates, Gifts & Trust Journal; author, 861 T.M., Trustee Investments, 825 T.M., Powers of Appointment — Estate, Gift and Income Tax Considerations, 847 T.M., Disclaimers — State Law Considerations, 848 T.M., Disclaimers — Federal Estate, Gift and Generation-Skipping Transfer Tax Considerations, and 838 T.M., Dynasty Trusts; and numerous other professional publications.

Mr. Cline's contributions to this work were prepared before he joined Wells Fargo Bank, N.A., where he currently is the Regional Fiduciary Manager for Wells Fargo Bank, National Association. The views expressed in this portfolio reflect only the personal views of the authors, and are not necessarily those of Wells Fargo Bank, N.A., any of its affiliates or any of its subsidiaries.

Professor Jeffrey Pennell is the Richard H. Clark Professor of Law at Emory University School of Law in Atlanta. A graduate of Northwestern University School of Law, he is a Member of the American Law Institute and an Adviser for both Restatements of the Law (Third) (Wills and Other Donative Transfers, and Trusts), a former member of the Council of the Real Property, Trust and Estate Section of the American Bar Association, an Academic Fellow and former Regent of the American College of Trust and Estate Counsel, and an Academician of The International Academy of Estate and Trust Law. His various publications include a handful of student and classroom texts, several Tax Management Portfolios, dozens of articles and institute chapters, and he is the successor author of Casner & Pennell on Estate Planning (7th ed. 2011), from which portions of this work are extracted and originally were published in 32 U. Miami Inst. Est. Plan. ¶ 900 (1998).

Professor Terry L. Turnipseed is Associate Professor of Law, Syracuse University College of Law. He received a J.D. and an LL.M. in Taxation at the Georgetown University Law Center, two Master of Science degrees at the Massachusetts Institute of Technology, and a Bachelor of Science degree at Mississippi State University. Portions of this work are extracted from Terry L. Turnipseed, “Why Shouldn't I be Allowed to Leave My Property to Whomever I Choose At My Death? (Or How I Learned to Stop Worrying and Start Loving the French),” 44 U. Louisville Brandeis L.J. 737 (2006).


Portfolio 841-1st: Spouse's Elective Share

Portfolio Description


Technical Advisors


Detailed Analysis

I. Introduction

Introductory Material

A. History of Dower, Curtesy, and the Elective Share

B. Community Property

1. Commutation (a/k/a Transmutation)

2. Commingling

3. Title, Management Rights, and Disposition

4. Quasi-Community Property

5. Conflict of Laws and Other Problems Caused by Migration

C. Statutory Elective Share Entitlements

II. Policy Concerns Over the Elective Share

Introductory Material

A. Empirics Regarding Spousal Disinheritance

B. Medicaid Qualification

C. Marital Dissolution

D. Confusion in State Law

III. Representative Elective Share Statutes

Introductory Material

A. New York Elective Share Statute

B. Florida Elective Share Statute

C. Uniform Probate Code

1. Definition of Elective Share

2. Definition of Augmented Estate

a. Nonprobate Property Owned in Substance at Death

b. Nonprobate Transfers with Retained Rights

c. Certain Transfers Within Two Years of Death

3. Assets Transferred to the Decedent's Spouse

4. Surviving Spouse's Property and Nonprobate Transfers to Others

5. Exclusions, Valuation, and Overlapping Application

6. Sources from Which Elective Share Payable

7. Claiming the Elective Share

IV. Related Relevant Uniform Acts

A. Uniform Marital Property Act

B. Uniform Marriage and Divorce Act

V. Tax Consequences of Elective Share Statutes

A. Estate Tax Consequences

B. Income Tax Consequences

VI. Planning to Minimize an Elective Share

A. Premortem Alignment

1. Create a Trust That Will Survive Challenge

a. Three Tests for Trust Transfers

2. Pre- or Postnuptial Agreement

3. Completed No-Strings-Attached Gifts

4. Change Domicile

5. Settle Wealth in a Favorable Jurisdiction

6. Invest in Treasury Obligations

7. No Augmentation

8. Exploit 1990 Uniform Probate Code Augmented Probate Estate Gaps

9. Exploit Pre-1990 Uniform Probate Code Gaps

10. Totten Trusts

11. Satisfy Elective Share Entitlement in Ways the Testator Prefers

12. Direct that Elective Share Be Computed After Tax Payment

13. Become Subject to the 2008 Uniform Probate Code

14. If the Surviving Spouse Is Incompetent

15. Draft in Anticipation of Trust Invalidity

B. Postmortem Calculations

VII. Impact on Other Beneficiaries

A. Contractual Obligations

B. Abatement

C. Estate Tax

D. Timing

VIII. Conflict of Laws Aspects

A. Conflict of Laws

B. Application to Trust Transfers

IX. Conflicts of Interest


Working Papers

Table of Worksheets

Worksheet 1 Example of UPC Elective Share Calculation

Worksheet 2 UPC Examples