Elective Share
In one sentence
A surviving spouse's right to claim a portion of the deceased spouse's estate despite the will.
Plain English
In most states, a surviving spouse cannot be completely cut out of a will. Even if the deceased spouse's will leaves everything to someone else, the surviving spouse has the right to claim a percentage of the estate (often one-third to one-half). This protects spouses from being disinherited and ensures they have financial security after their partner's death.
Example
Tom's will leaves his entire $500,000 estate to his adult son from a previous marriage, giving nothing to his current wife, Lisa. Lisa files an elective share claim and the court awards her $250,000 (half the estate), leaving Tom's son with the remainder.
Used in a sentence
“The widow exercised her elective share to claim one-third of her husband's estate despite being excluded from his will.”
How Elective Share differs by state
Elective Share can apply differently depending on the state. Click a state to see local specifics.
Alabama
Alabama spouses receive one-third of the estate if children exist, one-half if none.
Alaska
Alaska spouses receive one-third of the estate, or one-half if no children or parents survive.
Arizona
Arizona treats most property as community property, eliminating traditional elective share rights.
Arkansas
Arkansas spouses receive one-third of the estate if children exist, one-half if none.
California
California is a community property state; spouses own half of all community property automatically.
Colorado
A surviving spouse receives one-half of the estate if there are no children, or one-third if children exist.
Connecticut
A surviving spouse may elect one-third of the estate, or the statutory allowance if it exceeds that share.
Delaware
A surviving spouse receives one-third of the estate if children exist, or one-half if no children survive.
Florida
A surviving spouse receives 30% of the estate if children exist, or the entire estate if no children survive.
Georgia
A surviving spouse receives one-third of the estate if children exist, or one-half if no children survive.
Kansas
A surviving spouse receives one-half of the estate if no children exist, or one-third if children survive.
Kentucky
A surviving spouse may claim one-third of the estate regardless of children, with a nine-month election deadline.
Louisiana
Louisiana's community property system limits elective share; surviving spouse retains community property and receives forced heirship rights instead.
Maine
A surviving spouse receives one-third of the estate if children exist, or one-half if no children survive.
Maryland
A surviving spouse receives one-third of the estate if children survive, or one-half if no children exist.
Massachusetts
A surviving spouse receives one-third of the estate if there are children, or one-half if there are no children.
Michigan
A surviving spouse may claim the greater of $150,000 or one-half of the estate if there are no children.
Minnesota
A surviving spouse receives one-third of the estate regardless of children, or one-half if there are no children.
Mississippi
A surviving spouse receives one-half of the separate property estate if there are no children.
Missouri
A surviving spouse receives one-half of the estate if there are no children, or one-third if children exist.
Montana
A surviving spouse may claim one-third of the estate if the deceased left children, or one-half if no children.
Nebraska
A surviving spouse may claim one-third of the estate regardless of the will's provisions.
Nevada
Nevada has no elective share; a surviving spouse has only the rights granted by the will or intestacy law.
New Hampshire
A surviving spouse may claim one-third of the estate if children survive, or one-half if no children.
New Jersey
A surviving spouse may claim one-third of the estate if children survive, or one-half if no children.
New Mexico
A surviving spouse may claim one-half of the community property and one-fourth of separate property, regardless of the will.
New York
A surviving spouse receives one-third of the estate if there are children, or one-half if there are no children, unless the will provides more.
North Carolina
North Carolina does not recognize an elective share; the surviving spouse's rights depend entirely on whether the deceased left a will.
North Dakota
A surviving spouse may claim one-third of the estate if there are children, or one-half if there are no children.
Ohio
A surviving spouse may claim one-third of the estate if there are children, or one-half if there are no children, or the entire estate under certain conditions.
Oklahoma
A surviving spouse may claim one-third of the estate if the deceased left children, or one-half if no children survive.
Oregon
A surviving spouse may elect to take one-third of the estate regardless of the will's terms.
Pennsylvania
A surviving spouse may claim one-third of the estate if there are children, or one-half if there are none.
Rhode Island
A surviving spouse may elect to take one-third of the estate, or one-half if no children survive.
South Carolina
A surviving spouse may claim one-third of the estate if there are children, or one-half if there are none.
South Dakota
South Dakota's elective share gives a surviving spouse one-third of the estate if the deceased had children, or one-half if childless.
Tennessee
Tennessee grants a surviving spouse one-third of the estate if children exist, or one-half if no children, with a nine-month election deadline.
Texas
Texas does not recognize a traditional elective share; instead, a surviving spouse receives a community property interest and a homestead allowance.
Utah
Utah's elective share grants a surviving spouse one-third of the estate if children exist, or one-half if childless, with a nine-month deadline.
Vermont
Vermont grants a surviving spouse one-third of the estate if children exist, or one-half if childless, with a six-month election deadline.
Virginia
Virginia allows a surviving spouse to elect one-third of the estate if the deceased left children, or one-half if no children.
Washington
Washington grants a surviving spouse a community property interest rather than an elective share; the spouse owns half of community property automatically.
West Virginia
West Virginia provides a surviving spouse with one-third of the estate if children exist, or one-half if no children survive.
Wisconsin
Wisconsin is a community property state; the surviving spouse owns one-half of community property automatically and has limited elective rights over separate property.
Wyoming
Wyoming does not recognize an elective share; the surviving spouse's rights depend entirely on intestacy law or the will's provisions.
District of Columbia
A surviving spouse may claim one-third to one-half of the estate, depending on whether the deceased left surviving children.
Hawaii
Hawaii's elective share gives a surviving spouse one-third of the estate, regardless of marriage length.
Idaho
Idaho grants a surviving spouse an elective share equal to one-half the community property plus one-half of separate property.
Illinois
Illinois awards a surviving spouse one-third of the estate if there are children, or one-half if there are no children.
Indiana
Indiana grants a surviving spouse one-third of the estate, or one-half if no children or descendants survive.
Iowa
Iowa's elective share is one-third of the estate if children survive, or one-half if no children survive.
Related terms
Probate
The court process of validating a will and distributing a deceased person's estate.
Intestate Succession
The legal process of distributing a deceased person's property when they leave no valid will.
Executor
The person appointed to carry out the instructions in a will.
Power of Attorney
A legal document authorizing someone to act on your behalf in financial or medical decisions.
Living Will
A document stating your wishes about life-sustaining medical treatment if you become unable to communicate.
Material Fact
A fact that significantly affects a party's rights, obligations, or decision-making in a contract.
Guardianship
A court-ordered arrangement where one person has legal authority to care for another who cannot care for themselves.
Testamentary Trust
A trust created within a will that takes effect after the person dies.
This page is a plain-English reference and is not legal advice. Laws vary by jurisdiction and change over time. For specific situations consult a licensed attorney.