Elective Share: A possibility for the surviving spouse when dissatisfied with the provisions of the decedents estate plan

Posted by Camilo Espinosa on August 10, 2013

Let's say you have been married with your spouse for many years and you feel it is safe to assume that your spouse will leave you as the beneficiary of everything he/she owns to you at their time of passing. You, of course, trust your spouse, and are pretty confident that as the surviving spouse you would be entitled to the majority of your spouse’s assets, such as the house you share and other assets.

However, what if when your spouse dies, you suddenly realize that your spouse has given most of his/her assets to other people. What about if many of these assets were left to other people and/or were titled under your spouse’s name with another person as joint tenants with

right of survivorship? Well, it seems that you may have a remedy to get as much as you can (in some circumstances), which is to exercise your right as the surviving spouse to get the elective share.

The obvious circumstance to apply for the elective share is if the surviving spouse is dissatisfied

with the provisions of the decedent's estate plan. It should be recommended that the election should be made if the elective share exceeds in value the amount that the electing spouse (or surviving spouse) would receive under the existent estate plan or will.

You, as the surviving spouse, have some rights--but you need to take action to protect yourself. The elective share computation is relatively easy, which is thirty percent (30%) of the elective estate. It is essential for a probate proceeding to be opened in order for you to take the election for elective share. Additionally, a personal representative most likely needs to be appointed to take the election.

Protect yourself, your family, and your wealth from difficult situations such as an unexpected will and testament following the death of your spouse. Contact our team of South Florida estate planning and probate attorneys at LOIGICA today for more information on any estate planning issue.

Topics: Business Law