An elective share is a term used 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. It has also been called a widow's share, statutory share, election against the will, or forced share.
The election rights of a spouse are governed by state laws, which vary by state. Under such laws, the surviving spouse has historically had the option of either:
1. Accepting what was provided to him or her pursuant to the decedents will; or
2. Electing to take a fixed portion of the decedents probate estate property.
The rationale for granting an election to the surviving spouse is to ensure that the surviving spouse receives at a minimum amount of the decedents wealth which, in many cases, was accrued during the marriage.
Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between 1/3 and 1/2 of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor children. Some states also reduce the elective share if the surviving spouse is independently wealthy.
Texas Notice of Election by Surviving Spouse is a legal document that provides the surviving spouse of a deceased person the opportunity to elect how they want to receive their share of the estate. This notice is an essential part of the probate process in Texas and allows the surviving spouse to make an informed decision regarding their inheritance. The Notice of Election by Surviving Spouse is typically filed with the probate court and served to the executor or personal representative of the deceased's estate. It serves as a formal declaration from the surviving spouse, outlining their choice to either accept the provisions made in the decedent's will or exercise their right to claim a statutory share of the estate under Texas law. Under Texas law, a surviving spouse has two options: to accept the provisions made in the decedent's will or to elect against the will and claim their community property or a portion of the separate property. This election is governed by Texas Estates Code Section 201.001-201.007. If the surviving spouse chooses to accept the provisions made in the will, they must file a written statement with the court, acknowledging their acceptance. This means they agree to abide by the terms of the will and will receive their designated share as stated in the document. On the other hand, if the surviving spouse decides to elect against the will, they must file a detailed election notice, specifying the property they wish to claim. They have the option to claim one-half of the community property along with certain portions of the separate property, such as their homestead, exempt personal property, and life insurance proceeds. It's important to note that the surviving spouse has a limited window of time to file the Notice of Election, usually within six months after the date the decedent's will was admitted to probate. Failure to file the notice within the specified timeframe may result in the spouse losing their right to elect against the will. Different types of Texas Notice of Election by Surviving Spouse include: 1. Election to Take Community Property: This type of election occurs when the surviving spouse chooses to claim their one-half share of the community property accumulated during the marriage. 2. Election to Take Statutory Share of Separate Property: In some cases, the surviving spouse may prefer to elect against the will and claim a portion of the decedent's separate property. This may include assets that were owned solely by the deceased spouse before the marriage. In conclusion, the Texas Notice of Election by Surviving Spouse is a crucial legal document that allows the surviving spouse to exercise their rights and the options available to them following the death of their spouse. It is essential for the surviving spouse to understand the implications of their decision and seek legal counsel to ensure they make an informed choice regarding their inheritance.
