An elective share is a statutory right that may let a surviving spouse claim a portion of a deceased spouse’s estate despite what the will says.
The rule prevents a spouse from being completely disinherited in many jurisdictions. The amount, calculation method, deadlines, and property included in the share depend on state law.
Why an elective share matters
Elective-share rules can change the practical effect of a will. A will may leave little or nothing to a spouse, but the spouse may still have a statutory choice to take an elective share instead of the will provision.
This can affect beneficiaries, estate administration, settlement negotiations, tax planning, and whether nonprobate transfers are included in the calculation.
Where it appears
Elective-share issues appear in probate administration, contested estates, blended-family disputes, prenuptial-agreement analysis, spousal disinheritance questions, and estate planning for married couples.
How it differs from nearby terms
An elective share is different from intestate succession. Intestacy applies when property is not controlled by a valid will or other transfer. An elective share can apply even when a valid will exists.
It is also different from marital property, which is a family-law concept used during marriage or divorce. The elective share is an estate-law protection after death.
Practical example
A will leaves nearly all property to adult children from a prior marriage and a small gift to the surviving spouse. The surviving spouse may evaluate whether state law allows an elective share that is larger than the gift under the will.
Related terms
Quick check
An elective share is not a gift from the will. It is a statutory spousal protection that may override the will’s distribution plan.