People spend a lot of time and effort in crafting their estate plans.  A last will and testament is clearly a key element of your plan.  In most cases, spouses will be very open and honest with each other about the contents of their wills.  However, there are some cases where one spouse may change the terms of his or her will without the other spouse’s knowledge.  A spouse may change a will to completely disinherit the other spouse.  In that case, the disinherited spouse may choose to take an elective share of the estate.

The spousal elective share allows a spouse to claim a certain portion of the estate without regard to what the deceased spouse’s will states.  How much the surviving spouse can claim is dependent on how long the parties have been married.  The longer the parties have been married, the higher the percentage, with the percentage topping out at fifty percent of the estate at fifteen years of marriage or more.  The minimum amount of elective share is $75,000.

In addition to the percentage of the estate, there are certain assets that are known as “exempt property” and the spouse can claim these assets regardless of their value.  These assets include the marital residence, one car, $15,000 of personal property, and $2300 per month for a maximum of eighteen months.  It should be noted, however, that the surviving spouse’s right to certain assets will vary depending on if the deceased spouse had children.  If the deceased spouse did have children, then the surviving spouse will only receive a life estate in the home.  At the time the surviving spouse passes away, the home will then pass to the first spouse’s children.  This means that the spouse who receives the life estate in the home cannot, for example, leave the house to different relatives.

The parties are able to waive an elective share, if they so choose. To do so, they need to have a specific and properly executed prenuptial or postnuptial agreement.  In the alternative, the parties may do so by executing specific documents in their estate plan.

If you have questions about probate or wills, call us today at (320) 299-4249.  We can talk with you about your plans and goals.