What’s Wrong About the Elective Share “Right”?

This Article examines one form of property rights available to a survivingspouse, the elective share. The elective share serves as an override to atestator’s stated intent by allowing the surviving spouse to choose to take aportion of the decedent’s estate — even if the will explicitly disinherits thesurviving spouse. The Article analyzes a recent five-year period of statecases raising elective share issues with the goal of determining thecircumstances under which an elective share is most likely to be contested.The reported elective share disputes typically involve a subsequent spousechallenging a will that leaves property to an earlier family. The petitionersare almost invariably women. The length of the marriage ranges from a fewmonths to decades, and some of the cases involve waiver of the share, someinvolve estranged spouses, and a few involve marriage fraud. Disputes overthe elective share illustrate family tensions, rarely involving parents againstjoint children, and more frequently pitting a surviving spouse against thedecedent’s earlier families.The Article provides an empirical assessment of the current rationales forthe elective share and suggests revisions to existing elective shareapproaches that reflect both differing theories of what values marriageshould represent and the changing demography of marriage andremarriage