Sections Contest Property disposition Common types Other types Governing doctrines 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.
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 to prevent them from falling into poverty and becoming a burden on the community.
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.
First, it prevents the decedent from effectively disinheriting the surviving spouse by either gifting away assets before death or by tying up assets in devices such as trusts or joint accounts that benefit third parties after the decedent's death.
To accomplish that, the augmented estate is calculated by combining the value of the probate estate with such things as the value of gifts given by the decedent to third parties, property or accounts held in survivorship estates (such as a joint bank account, the proceeds of which would pass to the survivor among the account holders), the value of life insurance policies over which the decedent had the power to name the beneficiary, as well as gifts to the surviving spouse, and property held jointly with the surviving spouse.