Did you know that even if you purposely write your spouse out of your will, they may still be able to take a portion of your money? Yes, that is thanks to a law known as “spousal elective share,” which basically allows a spouse to take some of your money when you die, even if you didn’t include them in your will. This is typically to protect spouses from being purposely or accidentally excluded from a spouse’s will. Every state has different parameters around what qualifies a surviving spouse to take their elective share and how much they may take. The good news? You can avoid this by having your spouse sign off on an elective share waiver in a prenup and/or postnup. Let’s dive into everything you need to know about elective share rules.
Understanding elective share laws
Elective share laws are meant to protect surviving spouses who have been unknowingly or accidentally disinherited from their spouse’s will. Think of a situation where a stay-at-home mom/wife attends the will reading of her breadwinner-husband, who (to her surprise) leaves all of the money to his secretary. This is the type of scenario elective share laws are meant to protect against. Another would be the accidental disinheritance of spouses, such as if the will was created before getting married.
Elective share laws generally state that a spouse has a right to take a fraction of the estate, regardless of what the will says—even if specifically disinherited. There may be some conditions that need to be met before a spouse can take their elective share, such as the requirement to file the request within a certain deadline.
The good news is that you can waive the spousal elective share. Yes, you can make sure that you and your spouse are NOT able to take a portion of the estate. For example, if you want your whole estate to pass to your children, you can make sure to disinherit your spouse from your will and make sure your spouse signs off on an elective share waiver.
State-specific elective share laws
There are several variations on elective share laws across states. Here’s what to know:
- Some states don’t have elective share laws. These states may have other protections in place, such as community property laws which allow for the surviving spouse to take all of the community property upon death.
- Variation in percentage allowed. States vary in terms of how much of the deceased spouse’s estate the surviving spouse may take. For example, in Illinois, a surviving spouse may take ½ of the estate if there are no children. (755 ILCS 5/2-8). On the other hand, in New Jersey, a surviving spouse may take 33% regardless of child status. (N.J. Stat. § 3B:8-1).
- What assets are included: Sometimes, different states will exclude different asset types, such as trusts or life insurance.
- Waiver requirements: Remember, you and your spouse can waive your right to an elective share—meaning neither person can take a portion of the estate. States have different rules for validly waiving elective share rights. For example, Florida requires an elective share to be in writing, signed, and witnessed. (Fla. Stat. § 732.702).
Remember, check with a lawyer or your state laws to understand the exact rules on elective share rights in your state.
Waiving an elective share right in a prenup or postnup
Good news! You aren’t stuck with this fate. If your state has an elective share law where your spouse can take a portion of your estate regardless of what’s in your will, you can avoid this by having your spouse sign off on an elective share waiver. You can do this in a standalone agreement, prenuptial agreement, or postnuptial agreement.
Also, just because you waive elective share doesn’t mean you can’t still provide for the spouse in your estate plan. For example, if you want to make sure your beloved wife/husband gets your antique car collection but you still want 90% of the estate to go to your kids, you can do that through a will/trust and an elective share waiver.
Many states have specific requirements for a valid and enforceable elective share waiver. However, requirements can vary. Here are some typical requirements you can expect:
- Must be in writing
- Must be signed
- May require financial disclosure
- May require notarization or witnesses
- May be executed prior to marriage or during marriage
Again, check your state law’s requirements for elective share waivers.
Who might want to waive elective share?
Many people might think to themselves, “Oh, an elective share law doesn’t bother me because I want my spouse to get everything,” and if that is you, then great! You don’t really need to worry about an elective share waiver. However, if you have specific wishes for your estate that don’t include your spouse taking a significant portion of your stuff, then you should get an elective share waiver.
Here are some examples of people who may want to have their spouse sign an elective share waiver:
- People who want to give all of their money to their kids from another relationship
- People who only want to leave a small portion of their estate to their spouse
- People who want to give 100%, or other large portion, of their estate to a charitable organization
- People with concerns about the longevity of the marriage
Consequences of overlooking your state’s elective share laws
If you fail to address your state’s elective share laws, you could unintentionally allow your spouse to take a portion of your estate…even if you have a will in place. Crazy, right? This can create family conflict between children or other beneficiaries who expect 100% of the estate. In addition, when a spouse elects for their spousal share during probate, this slows down the whole process. It can cause a significant delay in the distribution of assets.
How a prenup and/or postnup can help
You can put an elective share waiver in a prenup or postnup to ensure that you have control over what happens to your stuff after you die. Without an elective share waiver in a prenup or postnup (or standalone document), your spouse may be able to take a portion of your estate even if you purposely disinherited them. With an elective share waiver in your prenup/postnup, you can make sure that your spouse only gets what you want them to in your will.
Bottom line
The bottom line is that it is crucial to understand your state’s laws on elective share rights. Does your state have an elective share law? If so, how much can your spouse take? What are the conditions for electing this right? Are you okay with this? If not, you should consider getting a prenup or postnup that waives elective share. And remember, you can still provide for your spouse in the will; the elective share waiver just says that they cannot renounce your will.
Concerned about elective share laws impacting your estate plan? HelloPrenup can help! Create a prenuptial agreement that includes an elective share waiver HelloPrenup, giving you peace of mind and control over your assets.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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